United States v. Jose Suarez , 598 F. App'x 312 ( 2015 )

Case: 14-50729 Document: 00512981086 Page: 1 Date Filed: 03/25/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-50729
No. 14-50746
United States Court of Appeals
Fifth Circuit
Summary Calendar FILED
March 25, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
JOSE LUIS SUAREZ,
Defendant−Appellant.
Appeals from the United States District Court
for the Western District of Texas
USDC No. 7:13-CR-274-1
USDC No. 7:14-CR-58-1
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
In a consolidated plea agreement, Jose Suarez pleaded guilty of wire
fraud and of subscribing false tax returns, in violation of 18 U.S.C. § 1343 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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26 U.S.C. § 7206(1) and (5), respectively. He appeals the separate judgment in
each matter, contending that the factual basis was insufficient to support the
wire-fraud conviction and that the restitution order constituted an illegal sen-
tence because restitution cannot be imposed in a tax-evasion case under
Title 26.
With respect to wire fraud, Suarez claims that the factual basis did not
set out facts showing that his sales-tax filings with the Texas Comptroller of
Public Accounts crossed state lines, so the government did not establish the
interstate element of the wire-fraud offense. Suarez asserts that, but for the
error, he would not have pleaded guilty of wire fraud.
Because Suarez did not object in district court to the sufficiency of the
factual basis, our review is for plain error only. See United States v. Broussard,
669 F.3d 537, 546 (5th Cir. 2012). Under that standard, Suarez must show
that the error was clear or obvious and affected his substantial rights. See
Puckett v. United States, 556 U.S. 129, 135 (2009). To show that the error
affected his substantial rights, he must demonstrate “a reasonable probability
that, but for the error, he would not have entered the plea.” United States v.
Dominguez Benitez, 542 U.S. 74, 83 (2004). Even if he makes such a showing,
this court has the discretion to correct the error, but only if it “seriously
affect[s] the fairness, integrity, or public reputation of judicial proceedings.”
Puckett, 556 U.S. at 135 (internal quotation marks and citation omitted).
To determine whether a factual basis is sufficient, a district court must
compare the facts admitted by the defendant to the elements of the offense.
United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001) (en banc). The ele-
ments of wire fraud are “(1) a scheme to defraud; (2) material falsehoods; and
(3) the use of interstate wires in furtherance of the scheme.” United States v.
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Brooks, 681 F.3d 678, 700 (5th Cir. 2012); see § 1343.
The indictment charged that Suarez schemed to defraud the State of
Texas by filing, via the Internet, fraudulent quarterly sales-tax reports with
the Comptroller, “thereby causing writings, signs, and signals to be trans-
mitted in interstate commerce.” The factual basis to which Suarez stipulated
likewise provides, in relevant part, that the sales-tax filings were “accom-
plished via the Internet, and therefore cause[d] writings, signs, and signals to
be transmitted in interstate commerce.”
Suarez maintains that the reference to “via the Internet” was insufficient
to show that the fraudulent returns traveled in interstate commerce. He con-
tends that a purely intrastate communication is outside the scope of the wire
fraud statute.
Suarez admitted that he used the Internet and caused “writing, signs
and signals to be transmitted in interstate commerce.” The factual basis is
thus not clearly inconsistent with the elements of the charged offense and does
not exclude the possibility that Suarez committed mail fraud. Therefore, even
if there was clear or obvious error―a question we do not address―Suarez has
not shown that the error affected his substantial rights. See Dominguez Beni-
tez, 542 U.S. at 83. Further, under the circumstances, we decline to exercise
our discretion to correct the error. See Puckett, 556 U.S. at 135.
We reached the same conclusion on similar facts in United States v.
Ibanez, 532 F. App’x 544, 545−46 (5th Cir. 2013). Although Ibanez, being
unpublished, is not binding precedent, it is persuasive. See United States v.
Johnson, 619 F.3d 469, 473 n.3 (5th Cir. 2010).
There also is no reversible error regarding the restitution order. Because
Suarez challenges the legality of the restitution award, review is de novo. See
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United States v. Nolen, 472 F.3d 362, 382 & n.52 (5th Cir. 2006). Although
18 U.S.C. § 3663 does not authorize restitution orders for Title 26 offenses, it
does allow the sentencing court to “order restitution in any criminal case to the
extent agreed to by the parties in a plea agreement.” § 3663(a)(3); see United
States v. Stout, 32 F.3d 901, 905 n.5 (5th Cir. 1994). Suarez expressly agreed,
in the plea agreement, to pay restitution pursuant to § 3663(a)(3) and stipu-
lated to the amount. Accordingly, the district court did not err in imposing
restitution.
The judgments of conviction and sentence are AFFIRMED.
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