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United States v. Cook ( 2022 )


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  • Case: 21-10525      Document: 00516265049         Page: 1    Date Filed: 04/04/2022
United States Court of Appeals
for the Fifth Circuit                             United States Court of Appeals
Fifth Circuit
FILED
April 4, 2022
No. 21-10525
Summary Calendar                       Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Nathan Lee Cook,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CR-339-10
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Nathan Lee Cook pleaded guilty to conspiracy to possess with intent
to distribute 50 grams or more of methamphetamine and was sentenced at
the bottom of the advisory guidelines range to 140 months of imprisonment.
Cook challenges on appeal the denial in a minute entry “as moot” of his pro
se motion to withdraw his guilty plea, filed while he was represented by court-
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-10525       Document: 00516265049           Page: 2     Date Filed: 04/04/2022
No. 21-10525
appointed counsel. His appellate issues challenge whether the magistrate
judge had the statutory authority to make a dispositive ruling denying his
motion and, additionally, whether the magistrate judge legally erred in
denying Cook’s pro se motion as moot. We pretermit the issue whether
Cook’s appeal waiver bars the issues he has raised herein because, as
discussed below, they fail on the merits. See United States v. Story,
    439 F.3d 226
    , 230-31 (5th Cir. 2006); United States v. Smith,
    528 F.3d 423
    , 424 (5th
Cir. 2008).
Cook’s appellate arguments were raised for the first time on appeal;
therefore, Cook did not give the district court an opportunity to correct the
alleged errors, and review is for plain error only. See Puckett v. United States,
    556 U.S. 129
    , 135, (2009); United States v. Dominguez–Alvarado,
    695 F.3d 324
    , 327-28 (5th Cir. 2012); See United States v. Neal,
    578 F.3d 270
    , 272 (5th
Cir. 2009). To show plain error, Cook must show a forfeited error that is
clear or obvious and that affects his substantial rights. Puckett,
    556 U.S. at 135
    . If he makes that showing, this court has the discretion to correct the
error but only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings.
    Id.
    Even if it is assumed arguendo that a clear and obvious error occurred
either when (1) Cook’s pro se motion was referred to the magistrate judge for
a dispositive ruling or, (2) after the magistrate judge stated that Cook’s
motion would not be considered, the clerk-generated minute entry
erroneously represented that Cook’s pro se motion was denied as moot, his
arguments do not survive plain error review. See Puckett,
    556 U.S. at 135
    .
Cook has made no showing that his substantial rights were affected by the
alleged errors. United States v. Dominguez Benitez,
    542 U.S. 74
    , 83 (2004).
Cook argues that the error affected his substantial rights because he
“was convicted on a plea unsupported by sufficient proof that the conduct he
engaged in fell within the scope of the conduct criminalized by [
    18 U.S.C. § 846
    ]” and states in only a conclusional fashion that if he had known of the
insufficiency of the factual basis, he would not have pleaded guilty.
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Case: 21-10525      Document: 00516265049           Page: 3    Date Filed: 04/04/2022
No. 21-10525
When examined under the totality of circumstances of the case,
however, Cook’s conclusional challenge to the factual basis of his plea fails
to establish to a reasonable probability that but for the alleged error, he would
not have pleaded guilty. See Dominguez Benitez,
    542 U.S. at 83
    ; cf. United
States v. Garcia-Paulin,
    627 F.3d 127
    , 131-34 (5th Cir. 2010) (holding that the
defendant established his substantial rights were affected where he would not
have pleaded guilty if he knew the factual basis relied on by the court to
support his conviction failed to show that his conduct violated the statute).
Cook pleaded guilty knowingly and voluntarily at his rearraignment, despite
having the benefit of his co-defendant’s affidavit testimony retracting some
information that implicated Cook in the conspiracy. To the extent the
retraction may have affected the factual stipulation, Cook and his first court-
appointed counsel thereafter initialed the handwritten changes made to the
factual resume. Furthermore, despite the minute entry stating that Cook’s
pro se motion to withdraw his plea was denied as moot, Cook discussed re-
raising the motion with newly appointed counsel. At sentencing, neither
Cook nor his counsel raised any issues regarding the withdrawal of his plea,
its involuntary nature, or its insufficient factual basis. Cook simply has not
identified any portion of the record demonstrating that his decision to plead
guilty was affected by the alleged minute entry error.
AFFIRMED.
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