United States v. Felipa Herrera Caballero , 333 F. App'x 485 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15655 ELEVENTH CIRCUIT
JUNE 26, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 08-20485-CR-AJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FELIPA HERRERA CABALLERO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 26, 2009)
Before DUBINA, Chief Judge, TJOFLAT and BLACK, Circuit Judges.
PER CURIAM:
Felipa Herrera Caballero appeals her conviction for possession and use of
another person’s identification during a felony, a violation of 18 U.S.C. § 1028A.1
Caballero argues on appeal the Government selectively prosecuted her based on
her ethnicity, gender, and physical condition.
Generally, a defendant waives all nonjurisdictional defects upon pleading
guilty to an indictment. United States v. Smith, 532 F.3d 1125, 1127 (11th Cir.
2008); see also United States v. Jennings, 991 F.2d 725, 730 (11th Cir. 1993)
(assuming, without comment, that selective prosecution of a defendant would
constitute a defect in the indictment).
Caballero never raised the issue of selective prosecution before the trial
court, but instead pled guilty to the charges in the indictment. She thus has waived
this issue on appeal. See Smith, 532 F.3d at 1127. Accordingly, we affirm her
conviction and sentence.2
AFFIRMED.
1
Caballero does not challenge her convictions for unlawful re-entry into the United
States, a violation of 8 U.S.C. § 1326(a), and false representation in order to gain entry into the
United States, a violation of 18 U.S.C. § 911.
2
To the extent Caballero’s Notice of Supplemental Authority can be construed as raising
an argument that there was an insufficient factual basis to support her guilty plea, see Fed. R.
Crim. P. 11(b)(3); Flores-Figueroa v. United States, 129 S. Ct. 1886, 1888 (2009), we decline to
consider this issue because it was not raised in Caballero’s initial brief, see United States v.
Valladares, 544 F.3d 1257, 1269 n.2 (11th Cir. 2008). Furthermore, even if we were to reach the
merits of this issue, we would uphold Caballero’s conviction because she did not raise a Rule 11
objection in district court, and the court did not plainly err in failing to anticipate the Supreme
Court’s decision in Flores-Figueroa.
2