United States v. Galan ( 2022 )

Case: 21-40325 Document: 00516163758 Page: 1 Date Filed: 01/12/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 12, 2022
No. 21-40325 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Freddie Galan,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:20-CR-1266-1
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Freddie Galan challenges his guilty-plea conviction for conspiring
with intent to distribute 500 grams or more of methamphetamine. He
primarily contends that the factual basis was not sufficient under Federal
Rule of Criminal Procedure 11(b)(3) to support his conviction.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-40325 Document: 00516163758 Page: 2 Date Filed: 01/12/2022
No. 21-40325
Because Galan raises his challenge for the first time on appeal, we
review for plain error, “examining the entire record for facts supporting the
guilty plea and drawing reasonable inferences from those facts to determine
whether the conduct to which the defendant admits satisfies the elements of
the offense charged.” United States v. Escajeda, 8 F.4th 423, 426 (5th Cir.
2021). We may consider, inter alia, the facts contained in the plea colloquy,
the presentence report (PSR), and the sentencing hearing. United States v.
Barton, 879 F.3d 595, 599 (5th Cir. 2018).
Contrary to Galan’s contentions, his plea colloquy and the PSR
establish that the conspiracy at issue predated the cooperation of co-
conspirator Jesus Mares with the Government. See United States v. Asibor,
109 F.3d 1023, 1032 (5th Cir. 1997) (observing that an individual who
eventually cooperates with Government “may have been a part of the
continuing conspiracy prior to becoming an informer”). The PSR likewise
describes communications, contained on Galan’s cell phone, between Galan
and an unidentified individual with a Mexico-based phone number discussing
an apparent narcotics operation. See Escajeda, 8 F.4th at 427 (observing that
defendant can be convicted of conspiring with individual whose name is
unknown). Finally, the large quantity of drugs at issue—approximately 70
kilograms of methamphetamine—provides strong circumstantial evidence
from which the existence of the conspiracy may be inferred. See id. Galan
fails to show plain error. See id. at 426; Barton, 879 F.3d at 599.
Because Galan’s challenges to the voluntariness of his plea and the
effectiveness of his trial counsel are both premised upon his meritless factual-
basis contentions, those remaining claims likewise fail. See United States v.
Kimler, 167 F.3d 889, 893 (5th Cir. 1999) (holding that counsel cannot render
ineffective assistance by failing to raise meritless claim).
The judgment of the district court is AFFIRMED.
2