United States v. Fernando Frias-Garcia

Case: 13-50981 Document: 00512880340 Page: 1 Date Filed: 12/23/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-50981
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 23, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
FERNANDO FRIAS-GARCIA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:06-CR-762-1
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Fernando Frias-Garcia pleaded guilty pursuant to a plea agreement to
possession with intent to distribute more than five kilograms of cocaine. In the
plea agreement, Frias-Garcia agreed to waive all of his rights to appeal his
sentence, if within the statutory maximum, and to contest his conviction and
sentence in any collateral proceeding with the reservation that he could bring
a challenge based on ineffective assistance of counsel or prosecutorial
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-50981 Document: 00512880340 Page: 2 Date Filed: 12/23/2014
No. 13-50981
misconduct. On July 16, 2007, the district court sentenced him at the bottom
of the applicable guidelines range to 120 months of imprisonment, with a 5-
year term of supervised release. On September 30, 2013, the district court
granted Frias-Garcia an out-of-time appeal.
Frias-Garcia argues that his guilty plea was not knowing and voluntary
for three reasons. All of these claims will be reviewed for plain error because
Frias-Garcia did not object to the district court’s alleged errors. See United
States v. Vonn, 535 U.S. 55, 62-63 (2002). To show plain error, Frias-Garcia
must show a forfeited error that was “clear or obvious, rather than subject to
reasonable dispute,” and that the error affected his substantial rights. Puckett
v. United States, 556 U.S. 129, 135 (2009). The record shows that the district
court informed Frias-Garcia that he faced a possible sentence that included a
term of not less than five years of supervised release. This admonition includes
the possibility of a maximum term of life, as that could be greater than five
years. See United States v. Jackson, 559 F.3d 368. 371 (5th Cir. 2009). Frias-
Garcia has shown no error, plain or otherwise, with respect to this issue.
Second, Frias-Garcia argues that his plea was not knowing and
voluntary because the district court violated Federal Rule of Criminal
Procedure 11(b)(1)(G) by failing to explain the nature of the charge against
him. The district court informed him that he was charged with possession with
the intent to distribute more than five kilograms of cocaine. The district court
determined that he had consulted with his attorney and understood his plea
agreement and the statement of facts it contained. The statement of facts
specifically indicated that Frias-Garcia “knew or remained deliberately
ignorant of the fact that there was cocaine in the vehicle and possessed the
cocaine with the intent to distribute the cocaine.” A reasonable person would
not doubt that Frias-Garcia understood the charge against him in light of the
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No. 13-50981
record as a whole. See United States v. Reyna, 130 F.3d 104, 110 (5th Cir.
1997). Frias-Garcia has not established plain error with respect to this issue.
Third, Frias-Garcia argues that the district court violated Federal Rule
of Criminal Procedure 11(b)(3) because there was an insufficient factual basis
for his plea. In reviewing Frias-Garcia’s claim for plain error, this court
examines the entire record for facts supporting the plea, including “fairly
drawn inferences from the evidence presented both post-plea and at the
sentencing hearing.” United States v. Trejo, 610 F.3d 308, 317 (5th Cir. 2010).
At sentencing, Frias-Garcia admitted that he suspected he was carrying drugs.
Frias-Garcia has not established plain error with respect to this issue.
Frias-Garcia argues that his sentence is substantively unreasonable
because the district court did not grant the Government’s U.S.S.G. § 5K1.1
motion for a downward departure. The Government correctly argues that this
issue is barred by Frias-Garcia’s waiver of his right to appeal his sentence. See
United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).
Finally, Frias-Garcia argues that the district court erred in depriving
him of his federal benefits for five years pursuant to 21 U.S.C. § 862(a) and in
recommending that he not receive any sentence reduction for drug treatment
and counseling under 18 U.S.C. § 3621. Both of these issues are moot. See Ctr.
for Biological Diversity, Inc. v. BP America Prod. Co., 704 F.3d 413, 431 (5th
Cir. 2013).
AFFIRMED.
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