United States v. Patrick Mire ( 2015 )

Case: 14-50248 Document: 00513230012 Page: 1 Date Filed: 10/13/2015
REVISED October 13, 2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-50248 FILED
Summary Calendar August 3, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
PATRICK G. MIRE,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:11-CR-62
Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM: *
Patrick G. Mire was convicted of one count of conspiring to commit mail
fraud and one count of conspiring to commit money laundering and was
sentenced to serve 36 months in prison and a three-year term of supervised
release. The district court also ordered him to pay $10,000,000 in restitution
and ordered forfeiture of this same amount.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50248
Now, Mire argues that his conviction for conspiracy to launder money
cannot stand because the factual basis offered in support of it is insufficient.
Because Mire did not object in the district court to the sufficiency of the factual
basis underlying his plea, plain error review applies. See United States v.
Palmer, 456 F.3d 484, 489 (5th Cir. 2006); United States v. Vonn, 535 U.S. 55,
59 (2002).
To establish plain error, Mire must show a forfeited error that is clear or
obvious and that affects his substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009). To show that his substantial rights were affected, Mire
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). If Mire shows a clear or obvious error that infringed his substantial
rights, we have the discretion to correct it but will do so only if it “seriously
affects the fairness, integrity, or public reputation of judicial proceedings.”
Puckett, 556 U.S. at 135 (internal brackets, quotation marks and citation
omitted). “Obtaining relief for Rule 11 violations on plain error review ‘will be
difficult to get, as it should be.’” United States v. Hughes, 726 F.3d 656, 660
(5th Cir. 2013) (quoting Dominguez Benitez, 542 U.S. at 83 n.9).
When using the plain error standard to determine if a factual basis is
sufficient to uphold a plea, we may “look beyond those facts admitted by the
defendant during the plea colloquy and scan the entire record for facts
supporting his conviction.” United States v. Broussard, 669 F.3d 537, 546 (5th
Cir. 2012) (internal quotation marks and citation omitted). We may also make
inferences from the facts contained in the record. Id.Mire has not shown plain error in connection with his claim that the
factual basis offered in support of his money laundering charge is insufficient
to support it. The record facts suffice to permit the district court to conclude
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that Mire knowingly and intentionally joined an agreement to launder money
and thus provide a sufficient factual basis to uphold his money laundering
conviction. See 18 U.S.C. § 1956(h); Broussard, 669 F.3d at 546. The record
also undermines Mire’s claim that plain error resulted when the district court
neglected to advise him of the nature of the charge in accordance with Federal
Rule of Criminal Procedure 11(b)(1)(G). Additionally, the record does not
support a conclusion that Mire would have insisted on going to trial absent
these alleged errors. See Dominguez Benitez, 542 U.S. at 83. Mire has not
shown that his conviction for conspiring to launder money should be vacated.
Next, Mire argues that the Government breached the plea agreement
with respect to its obligations concerning his restitution, thus permitting him
to challenge this part of his sentence despite the appellate waiver clause in his
plea agreement. Mire did not raise this claim in the district court. Although
the record reflects that Mire quoted language in the plea agreement with
respect to the government’s agreement to recommend apportioned restitution,
he never actually argued that the government breached the agreement.
Instead, he simply made arguments urging the court to order a lesser amount
of restitution, which does not preserve the separate claim of breach of plea
agreement. Thus, we review the claim for plain error. See United States v.
Hebron, 684 F.3d 554, 557-58 (5th Cir. 2012). Our review of the record
controverts Mire’s argument that the Government shirked its obligation to
recommend that Mire’s restitution be calculated according to his involvement
in and enrichment from the underlying scheme. Accordingly, Mire’s claim
concerning a breach of his plea agreement is unavailing.
Despite his waiver of his appellate rights with respect to his sentence,
Mire seeks to challenge his restitution order. He argues that he should be
permitted to do so because the district court neglected to bring the waiver to
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his attention at rearraignment in accordance with Federal Rule of Criminal
Procedure 11(b)(1)(N). Because Mire’s argument that his waiver should be
vitiated is grounded in a Rule 11 omission, the plain error standard applies.
See United States v. Oliver, 630 F.3d 397, 411 (5th Cir. 2011); United States v.
Goodson, 544 F.3d 529, 539 n.9 (5th Cir. 2008). He has not met this standard
because he has not shown a reasonable probability that he would have declined
to enter his plea absent the error. See Oliver, 630 F.3d at 412. Likewise
unavailing are Mire’s arguments that the waiver does not cover his restitution
order because the order is not part of his sentence and because he is arguing
that it is illegal. See United States v. Keele, 755 F.3d 752, 756-57 (5th Cir.
2014), cert. denied, 135 S. Ct. 1174 (2015). The waiver is valid and precludes
consideration of Mire’s challenge to his restitution order. See United States v.
Bond, 414 F.3d 542, 544 (5th Cir. 2005). We thus decline to consider this claim.
Finally, Mire argues, and the government agrees, that the forfeiture
order in his judgment is invalid because the procedures outlined in Federal
Rule of Criminal Procedure 32.2 were ignored. We agree. Accordingly, Mire’s
convictions and sentences, including the district court’s restitution order, are
AFFIRMED, and the order of forfeiture is REVERSED.
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