United States v. Gabriel Cardona-Ramirez , 358 F. App'x 562 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 23, 2009
No. 09-40359
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GABRIEL CARDONA-RAMIREZ, also known as Pelon, also known as Gaby,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:08-CR-244-8
Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Gabriel Cardona-Ramirez (Cardona) appeals his guilty-plea conviction for
conspiracy to kill and kidnap in a foreign country. He argues that the district
court erred under F ED. R. C RIM. P. 11 by not adequately advising him of the
nature of the charges against him and that this rendered his guilty plea
involuntary. He also asserts that the factual basis for his plea was insufficient.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 09-40359
Because Cardona did not object to any Rule 11 error before the district
court, review is for plain error. See United States v. Vonn, 535 U.S. 55, 59
(2002). To show plain error, Cardona must show an error that is clear or obvious
and that affects his substantial rights. United States v. Baker, 538 F.3d 324, 332
(5th Cir. 2008), cert. denied, 129 S. Ct. 962 (2009). If Cardona makes such a
showing, we have the discretion to correct the error but only if it seriously affects
the fairness, integrity, or public reputation of judicial proceedings. Id.At rearraignment the count of the indictment to which Cardona pleaded
guilty was read, and the district court determined that he and his attorney had
discussed this charge. However, the district court did not inquire whether
Cardona understood the charge against him or had any questions about the
charge. Even if there were clear or obvious error, see United States v. Lujano-
Perez, 274 F.3d 219, 224-26 (5th Cir. 2001); United States v. Cuevas-Andrade,
232 F.3d 440, 444 (5th Cir. 2000), a question we do not answer, Cardona still has
not met his burden of showing that any error affected his substantial rights. To
make this showing in the context of a Rule 11 error, Cardona must demonstrate
a reasonable probability that, but for the error, he would not have pleaded
guilty. See United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). Cardona
does not argue that he did not understand the charge, and his contention that
“it is reasonable to conclude” that he would not have pleaded guilty is
insufficient to show that any error affected his substantial rights. See
Dominguez Benitez, 542 U.S. at 83, 85; United States v. Smith, 184 F.3d 415, 417
(5th Cir. 1999).
Similarly, in challenging the voluntariness of the plea, Cardona contends
hypothetically that he could not have understood the nature of the charge
because the elements of the offense were not identified. He fails to identify any
elements of the offense that he did not understand, nor does he assert that his
plea actually was made involuntarily. Cardona has not shown that any error
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No. 09-40359
affected his substantial rights. See Dominguez Benitez, 542 U.S. at 83; Smith,
184 F.3d at 417.
Cardona argues that the factual basis was insufficient because it did not
show that he agreed with anyone else to kidnap or murder the victims or that
he or anyone else was within the jurisdiction of the United States when the
alleged agreement was made. Cardona asserts that the facts alleged in the
indictment materially conflict with the factual basis presented at rearraignment
and that the facts presented at rearraignment control. He argues for the first
time in his reply brief that only the oral factual basis offered at rearraignment
should be considered. Because this argument is raised for the first time in
Cardona’s reply brief, we need not address it. United States v. Fields, 483 F.3d
313, 352 n.36 (5th Cir. 2007).
Despite Cardona’s assertions to the contrary, consideration of the
indictment in determining the sufficiency of the factual basis was proper. See
United States v. Bachynsky, 949 F.2d 722, 730 (5th Cir. 1991). When read
together, the indictment and the written and oral factual bases supply the facts
necessary to support the offense. The indictment and the written factual basis
show that at least one telephone call was made to Cardona in Laredo informing
him of the location of Jorge Alfonso Aviles and Inez Villarreal. They also
indicate that sometime after receiving this call Cardona traveled to Nuevo
Laredo and killed the two. The oral factual basis states that Cardona received
a call informing him that Aviles was at a nightclub in Nuevo Laredo and that he
crossed from Laredo to Nuevo Laredo and went to the nightclub. Cardona’s
location in Laredo at the time of the call is a reasonable inference given the
sequence of events. Therefore, there is a sufficient factual basis to establish that
a portion of the conspiracy, the overt act of receiving the telephone call, took
place in the United States. See United States v. Pomranz, 43 F.3d 156, 160 (5th
Cir. 1995); United States v. Caldwell, 16 F.3d 623, 624-25 (5th Cir. 1994).
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No. 09-40359
Cardona’s assertion that there is an insufficient factual basis to show an
agreement to kidnap or murder is belied by the sequence of events and the fact
that he was informed regarding the location of Aviles and Villarreal, and he
directed where they were to be taken. See United States v. Stephens, 571 F.3d
401, 404 (5th Cir. 2009). Accordingly, he has not shown reversible plain error
with respect to the sufficiency of the factual basis.
To the extent that Cardona seeks to raise ineffective assistance claims, the
record is insufficient to address these issues on direct appeal. See United States
v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006).
AFFIRMED.
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