United States v. Gonzalez , 331 F. App'x 289 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 5, 2009
No. 08-20153
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CRESENCIO GONZALEZ, JR., also known as Chris, also known as Chencho,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CR-28-3
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Cresencio Gonzalez, Jr. appeals his guilty plea
conviction for conspiracy to launder monetary instruments. He asserts, based
on the intervening decision in United States v. Santos, 128 S. Ct. 2020 (2008),
that (1) there is an insufficient factual basis to support his guilty plea, (2) the
district court erred in its F ED. R. C RIM. P. 11 admonishments, and (3) his plea
was not knowingly and voluntarily entered. Gonzalez contends that Santos held
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-20153
that “proceeds” under the money laundering statute means “profits,” insisting
that the district court should have advised him of this definition at
rearraignment, that there is a reasonable probability that he would not have
pleaded guilty had he been properly admonished, and that this rendered his
guilty plea unknowing and involuntary. Gonzalez also contends that the factual
basis was insufficient to support his guilty plea because it did not establish that
the drug proceeds involved were profits.
We review a claim raised for the first time on appeal for plain error, even
when the claim is based on an intervening Supreme Court decision. United
States v. Rios-Quintero, 204 F.3d 214, 215 (5th Cir. 2000). To establish plain
error, the appellant must show a forfeited error that is clear or obvious and that
affects his substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429
(2009). Whether the error is plain is based on the law at the time of the appeal.
Johnson v. United States, 520 U.S. 461, 468 (1997). If the appellant meets the
first three prongs under Puckett, we have the discretion to correct the error, but
will do so only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Puckett, 129 S. Ct. at 1429.
The law governing the definition of proceeds under 18 U.S.C. § 1956remains unclear after Santos. See United States v. Brown, 553 F.3d 768, 783,
785 (5th Cir. 2008), cert. denied, 129 S. Ct. 2812 (2009). In light of this fact, and
given the disagreement in the decision over the comment in Justice Stevens’s
concurrence that gross revenues constitute proceeds under the statute when the
sale of contraband is involved, any error by the district court is not clear or
obvious. See United States v. Fernandez, 559 F.3d 303, 316 (5th Cir.), petition
for cert. filed (U.S. June 9, 2009) (No. 08-1517). Accordingly, Gonzalez has not
established plain error.
AFFIRMED.
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