USA v. Ruben Gonzalez Contrera

Filing

UNPUBLISHED OPINION FILED. [16-41379 Affirmed ] Judge: RHB , Judge: ECP , Judge: PRO Mandate pull date is 09/21/2017 for Appellant Ruben Omar Gonzalez Contreras [16-41379]

Case: 16-41379

Document: 00514138390

Page: 1

Date Filed: 08/31/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-41379
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
August 31, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
RUBEN OMAR GONZALEZ CONTRERAS,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:15-CR-1336-1
Before BARKSDALE, PRADO, and OWEN, Circuit Judges.
PER CURIAM: *

Ruben Omar Gonzalez Contreras appeals his guilty-plea conviction for
violating 18 U.S.C. § 2422(b) by using a facility of interstate commerce to
knowingly attempt to entice a minor to engage in criminal sexual activity.
Contreras asserts: the court lacked subject-matter jurisdiction; the evidence
was insufficient to support his guilty plea; and he was not properly admonished
under Federal Rule of Criminal Procedure 11.

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
*

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No. 16-41379
Although Contreras claims a lack of subject-matter jurisdiction, he
effectively claims venue was improper because the offense was not committed
within the southern district; he maintains it was within the western district.
Fed. R. Crim. P. 18 (setting forth general venue rule “the government must
prosecute an offense in a district where the offense was committed”); 18 U.S.C.
§ 3232. But, “[v]enue is a mere personal and technical right which may be
waived”. Baeza v. United States, 543 F.2d 572, 573 (5th Cir. 1976). “A plea of
guilty admits all the elements of a formal criminal charge and waives all nonjurisdictional defects in the proceedings leading to conviction.” United States
v. Cothran, 302 F.3d 279, 285-86 (5th Cir. 2002) (internal quotation marks and
citation omitted). Accordingly, because Contreras did not object to venue in
district court, the issue has been waived. Id. (Nonetheless, venue was proper
because Contreras’ 18 U.S.C. § 2422(b) violation constitutes a continuous
offense such that venue lies where any act occurred in continuation of the
crime. 18 U.S.C. § 3237(a); United States v. Rounds, 749 F.3d 326, 335 (5th
Cir. 2014).)
Because Contreras did not raise the remaining two issues in district
court, review is only for plain error. E.g., United States v. Broussard, 669 F.3d
537, 546 (5th Cir. 2012). Under that standard, Contreras must show a forfeited
plain (clear or obvious) error that affected his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion
to correct the reversible plain error, but should do so only if it “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings”. Id.
There was no plain error with respect to the sufficiency of the factual
basis supporting Contreras’ guilty plea. Broussard, 669 F.3d at 546. Because
he admitted at rearraignment he travelled to a pre-arranged location to meet
with an undercover officer posing as a minor’s guardian for the purpose of

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No. 16-41379
engaging in illicit sexual activity with the minor, the factual basis was
sufficient to support his conviction for the attempted 18 U.S.C. § 2422(b)
offense. United States v. Howard, 766 F.3d 414, 420-21 (5th Cir. 2014).
Finally,

there

were

no

plain

errors

arising

from

Contreras’

admonishments regarding the nature of the charge and his mandatory
minimum penalty. Fed. R. Crim. P. 11(b)(1)(G) & (I). As he acknowledges, the
magistrate judge read the indictment to him and informed him he faced a
minimum prison sentence of ten years. Contreras confirmed he understood
both the accusation against him, and the statutory penalties he was facing.
Even assuming these admonishments were clearly insufficient, Contreras has
nevertheless failed to show any effect on his substantial rights. Broussard,
669 F.3d at 546. Along that line, he has failed to allege, much less to establish,
there is a reasonable probability he would not have pleaded guilty but for the
alleged Rule 11 errors. Id.
AFFIRMED.

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