United States v. George Enriquez ( 2015 )

Case: 15-50072 Document: 00513209855 Page: 1 Date Filed: 09/28/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-50072 FILED
Summary Calendar September 28, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GEORGE MICHAEL ENRIQUEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:14-CR-206
Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
George Michael Enriquez appeals his guilty plea conviction for aiding
and abetting the possession with intent to distribute actual methamphetamine
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2. He was
sentenced to 108 months of imprisonment and five years of supervised release.
He argues that the factual basis was insufficient to support his guilty plea and
that the district court did not adequately explain the nature of the charge as
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 15-50072
required by Federal Rule of Criminal Procedure 11(b)(1). Because Enriquez
raises these arguments for the first time on appeal, we review for plain error.
See United States v. Vonn, 535 U.S. 55, 58–59 (2002). To show plain error, the
appellant must show a forfeited error that is clear or obvious, that affects his
substantial rights, and that seriously affects the fairness, integrity, or public
reputation of the judicial proceedings. Puckett v. United States, 556 U.S. 129,
135 (2009); United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
The indictment charged and Enriquez pled guilty to the knowing and
intentional aiding and abetting of possession with intent to distribute actual
methamphetamine. At rearraignment, the court read the indictment and
reviewed the charges specified in the indictment. Enriquez answered in the
affirmative when asked whether he understood. The district court did not
plainly err in determining that Enriquez understood the nature of the charge.
See Dominguez Benitez, 542 U.S. at 83; see also United States v. Cuevas-
Andrade, 232 F.3d 440, 444 (5th Cir. 2000); United States v. Dayton, 604 F.2d
931, 942–43 (5th Cir. 1979).
The government was required to prove that Enriquez knowingly and
intentionally aided and abetted possession of a controlled substance with the
intent to distribute. See United States v. Pando Franco, 503 F.3d 389, 394 (5th
Cir. 2007); United States v. Martinez-Lugo, 411 F.3d 597, 599 n.1 (5th Cir.
2005). Enriquez admitted in the factual basis that he delivered the
methamphetamine to the cooperating source, but he challenges whether the
factual basis established that he did this knowing that he was delivering a
controlled substance. The record as a whole, including the indictment, the plea
agreement, the plea colloquy, and the presentence report, demonstrates that
Enriquez knowingly aided and abetted the possession of the
methamphetamine with the intent to distribute it. The district court did not
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No. 15-50072
plainly err in determining that there was a factual basis for the plea. See
United States v. Trejo, 610 F.3d 308, 313, 317 (5th Cir. 2010).
Enriquez argues that his waiver of appeal should not be enforced because
the government breached the plea agreement by failing to make a motion
pursuant to U.S.S.G. § 3E1.1(b) for the third point for acceptance of
responsibility. Enriquez did receive the three-level reduction; there was no
breach.
Enriquez argues that the district court erred in sentencing him for actual
methamphetamine when he did not admit to possessing actual
methamphetamine. The government asserts that Enriquez waived his right
to appeal his sentence. Aside from his contention that the government
breached the plea agreement, Enriquez does not challenge the government’s
assertion of the waiver of appeal. Because Enriquez makes no other argument
challenging the enforceability of the appeal waiver, the waiver is enforced, and
his appeal of the sentence is dismissed. See United States v. Hildenbrand, 527
F.3d 466, 479 (5th Cir. 2008).
CONVICTION AFFIRMED; APPEAL OF SENTENCE DISMISSED.
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