United States v. Miralrio-Rebollar , 347 F. App'x 12 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 1, 2009
No. 08-50218
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ARTURO MIRALRIO-REBOLLAR,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:06-CR-21-1
Before DAVIS, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Arturo Miralrio-Rebollar (Miralrio) appeals his guilty plea conviction of
conspiracy to possess with intent to distribute methamphetamine and possession
of a firearm in furtherance of a drug trafficking crime. He argues for the first
time on appeal that there was an insufficient factual basis to support his guilty
plea to the firearms offense. He also argues that, in light of his assertion that
the factual basis for his plea was insufficient, his guilty plea was not knowing
*
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should not be published and is not precedent except under the limited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. 08-50218
and voluntary or, alternatively, that his counsel rendered ineffective assistance
by advising him to plead guilty to the offense.
Because Miralrio did not object to the sufficiency of the factual basis
supporting his guilty plea to the firearms offense below, review is for plain error.
United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001) (en banc). When
reviewing a F ED. R. C RIM. P. 11 error for plain error, this “court may consult the
whole record when considering the effect of any error on substantial rights.”
United States v. Vonn, 535 U.S. 55, 59 (2002).
The possession of a firearm “is ‘in furtherance’ of [a] drug trafficking
offense when it furthers, advances, or helps forward that offense.” United States
v. Ceballos-Torres, 218 F.3d 409, 410-11 (5th Cir.), amended on other grounds,
226 F.3d 651 (2000). Some of the factors this court considers in determining
whether a possession is “in furtherance” of a drug trafficking offense include the
following: (1) the type of drug activity that is being conducted, (2) the
accessibility of the firearm, (3) the type of the weapon, (4) whether the weapon
is stolen, (5) the status of the possession (legitimate or illegal), (6) whether the
gun is loaded, (7) proximity of the weapon to drugs or drug profits, and (8) the
time and circumstances under which the gun is found. Id. at 414-15.
Miralrio pleaded guilty to the indictment which charged that he had
possessed the gun in furtherance of the methamphetamine conspiracy charged
in the indictment. The Government’s cooperating witness told investigators that
Miralrio used horse vitamins to cut the methamphetamine that he received prior
to distributing the drugs, and investigators found “buckets” of horse vitamins in
Miralrio’s residence. As part of his factual basis, Miralrio admitted that the
horse vitamins were used to cut methamphetamine. Investigators recovered a
Smith and Wesson, Model 908, 9mm pistol stuffed “between the sofa seat
cushion and the armrest” of the sofa in Miralrio’s residence. The gun was loaded
and easily accessible. The Government’s cooperating witness admitted seeing
Miralrio with the gun during prior drug transactions. Finally, Miralrio’s
2
No. 08-50218
possession of the weapon is unlawful due to his immigration status as an
undocumented person who cannot legally possess a firearm.
The record as a whole establishes on plain error review a sufficient factual
basis for Miralrio’s plea. See id. at 410-11; see also United States v. Dyer, 136
F.3d 417, 425 n.13 (5th Cir. 1998). Accordingly, Miralrio has not established
that the district court plainly erred by accepting his guilty plea to the firearms
offense. See Marek, 238 F.3d at 315.
Because the record as a whole provides a sufficient factual basis for the
guilty plea, Miralrio’s remaining claims are without merit. Accordingly, the
judgment is AFFIRMED.
3