United States v. Venegas-Moreno ( 2001 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-50871
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MIGUEL ANGEL VENEGAS-MORENO, also known as Enrique Trejo
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(99-CR-1786-DB)
August 29, 2001
Before EMILIO M. GARZA, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
On November 23, 1999, Appellant Miguel Angel Venegas-Moreno
attempted to enter the United States at the Paso del Norte Port of
Entry. After being referred to a secondary inspector, Venegas-
Moreno admitted that he was an alien to the United States and
*
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opinion should not be published and is not precedent except under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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citizen of Mexico. On December 14, 1999, Venegas-Moreno was
indicted and charged with being “an alien, who had previously been
excluded, deported, and removed from the United States on or about
April 22, 1998, and who had not received the consent of the
Attorney General of the United States to re-apply for admission,
attempted to enter, entered and was found in the United States in
the Western District of Texas, in violation of Title 8, United
States Code, Section 1326.” On May 22, 2000, Venegas-Moreno
pleaded guilty, and on August 7, 2000, the district court entered
a judgment convicting Venegas-Moreno of the crime of “Illegal re-
entry.” Because of the defendant’s prior felony conviction,
Venegas-Moreno’s penalty was enhanced, and he was sentenced to
sixty months’ imprisonment.
On September 8, 2000, the district court appointed counsel to
represent Venegas-Moreno on appeal, and Venegas-Moreno filed a
Notice of Appeal. On appeal, Venegas-Moreno argues that the
factual basis is insufficient to support his guilty plea and that
his sentence violated due process because it exceeded the statutory
maximum.
The Plea
The government contends that the indictment, in addition to
charging Venegas-Moreno with entering and being found in the United
States, also charges that he “attempted to enter” the country. The
government also correctly notes that although the indictment
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alleges several offenses in the conjunctive, “a conviction thereon
will stand if proof of one of more of the means of commission is
sufficient.” United States v. Harvard, 103 F.3d 412, 420 (5th Cir.
1997) (quoting Fields v. United States, 408 F.2d 885, 887 (5th Cir.
1969)); United States v. Johnson, 87 F.3d 133, 136 n.2 (5th Cir.
1996)(citing United States v. Pigrum, 922 F.2d 249, 253 (5th Cir.
1991)). Because the indictment contains a charge, “attempted
illegal reentry,” which is supported by the factual basis, the
government contends that judgment against Venegas-Moreno is sound.
The issue before this court, however, is not whether Venegas-
Moreno’s indictment is sufficient. The issue, instead, is whether
there exists sufficient evidence in the factual basis to support
Venegas-Moreno’s plea of guilty to the crime of which he was
convicted--Illegal Reentry.
“A guilty plea is insufficient in itself to support a criminal
conviction.” United States v. Adams, 961 F.2d 505, 508 (5th Cir.
1992). “A trial court cannot accept a guilty plea unless there is
a sufficient factual basis for that plea.” United States v.
Angeles-Mascots, 206 F.3d 529, 530 (5th Cir. 2000) (citing Fed. R.
Crim. P. 11(f)). “This factual basis must appear in the record and
be sufficiently specific to allow the court to determine whether
the defendant’s conduct is within the ‘ambit of the statute’s
prohibitions.’” Id. (quoting United States v. Gobert, 139 F.3d
436, 439 (5th Cir. 1998)).
The record is clear that Venegas-Moreno pleaded guilty to the
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crime of “Illegal Reentry.” Although Venegas-Moreno’s indictment
includes a charge of attempting to reenter, the specific crime
listed in the judgment and the specific crime described in the Pre-
Sentencing Report is “Illegal Reentry.” The district court at
rearraignment stated that Venegas-Moreno was charged with illegal
reentry, inquired whether Venegas-Moreno was going to plead guilty
to illegal reentry after deportation, and stated that Venegas-
Moreno had been indicted for illegal reentry after deportation. In
response to the district court’s question, “To the single-count
Indictment accusing you of illegal reentry after deportation, how
[d]o you plead, sir, guilty or not guilty?” Venegas-Moreno replied,
“Guilty.”
The factual basis presented by the government as support for
Venegas-Moreno’s guilty plea, however, supports only a charge of
attempted illegal reentry. The factual basis demonstrates that on
November 23, 1999, Venegas-Moreno applied for admission into the
United States at the Paso del Norte Port of Entry in El Paso,
Texas, by making a claim of United States citizenship; that after
being referred to a secondary inspector, Venegas-Moreno admitted
that he was not a United States citizen but an alien to the United
States and a citizen and national of Mexico; that he had been
previously removed from the United States; that he had not received
the consent of the Attorney General to reapply for admission; and
that he had been convicted of an aggravated felony in July of 1984.
Facts sufficient to support a guilty plea to a crime of
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“attempted reentry” are not necessarily sufficient to support a
charge of “illegal reentry.” Angeles-Mascote, 206 F.3d at 530-31.
Because the factual basis presented by the government in Angeles-
Mascote revealed that the defendant had only approached immigration
officials and presented to them an alien registration card, this
court concluded that the district court erred in accepting the
defendant’s guilty plea without a sufficient factual basis. Id. at
532. Thus, the identical factual basis presented by the government
here does not support Venegas-Moreno’s guilty plea to the crime of
“Illegal Reentry.”
The record reflects that the defendant fully acknowledged
having committed acts constituting the crime of “attempted illegal
reentry,” and by pleading guilty to Count 1, Venegas-Moreno
necessarily pleaded guilty to “attempted illegal reentry.”
Accordingly, Venegas-Moreno’s conviction and sentence are VACATED,
and the case is REMANDED for the correction of the judgment of
conviction and the resentencing of the defendant on the basis of
the new judgment of conviction.
Apprendi Claim
The defendant also argues that because his sentence was
enhanced beyond the statutory maximum based upon an issue not
presented in the indictment, i.e., a prior conviction, his sentence
violates Apprendi v. New Jersey, 530 U.S. 466 (2000).
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Apprendi, 530 U.S. at 490, requires that “[o]ther than the
fact of a prior conviction, any fact that increases the penalty for
a crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” Prior
convictions are excluded under Apprendi by Almendarez-Torres v.
United States, 523 U.S. 224 (1998). Because the Court in Apprendi
expressly declined to overrule Almendarez-Torres, see Apprendi, 530
U.S. at 490; see also United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000), cert. denied, 121 S. Ct. 1214 (2001), this court
must follow Almendarez-Torres “unless and until the Supreme Court
itself determines to overrule it.” Dabeit, 231 F.3d at 984
(internal quotation and citation omitted). In fact, the defendant
concedes that his argument is foreclosed by Almendarez-Torres, but
states that he makes it on appeal to preserve the issue for Supreme
Court review. Accordingly, relief on this issue is DENIED.
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