Opinion
23-50518
05-06-2024
United States of America, Plaintiff-Appellee, v. Ernesto Alba Vasquez, Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas USDC No. 4:23-CR-11-1
Before BARKSDALE, GRAVES, and OLDHAM, Circuit Judges.
This opinion is not designated for publication. See 5TH CIR. R. 47.5.
Ernesto Alba Vasquez pleaded guilty to transportation of illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). He asserts the district court reversibly erred by accepting his guilty plea without a sufficient factual basis. He concedes there is a sufficient factual basis for his guilty plea in his presentence investigation report (PSR) but contends our court should not consider those facts.
Vasquez (as he also concedes) did not preserve this issue in district court; therefore, review is only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012). Under that standard, Vasquez must show a forfeited plain error (clear-or-obvious error, rather than one subject to reasonable dispute) that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes that showing, we have the discretion to correct the reversible plain error, but generally should do so only if it "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings". Id. (citation omitted).
Our court considers the entire record, including the PSR, on plainerror review of a factual basis' sufficiency. E.g., United States v. Barton, 879 F.3d 595, 599 (5th Cir. 2018). Consequently, Vasquez has not shown the requisite clear-or-obvious error because, as he correctly concedes, the plea colloquy and PSR establish a sufficient factual basis to support his guilty plea. See United States v. Marek, 238 F.3d 310, 314 (5th Cir. 2001) (en banc) ("[Federal Rule of Criminal Procedure] 11 requires the district court to determine that the factual conduct to which the defendant admits is sufficient as a matter of law to constitute a violation of the statute". (emphasis in original)); United States v. Gaspar-Felipe, 4 F.4th 330, 341 (5th Cir. 2021) (listing § 1324(a)(1)(A)(ii) elements).
AFFIRMED.