United States v. Jonathan Tullos

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 17, 2009
No. 09-40292
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JONATHAN CRAIG TULLOS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:08-CR-610-1
Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jonathan Craig Tullos, posing as a member of the U.S. Coast Guard en
route to a new post, attempted to cross the border with 72.1 kilograms of
marijuana hidden in the rental truck that he was driving. He pleaded guilty to
possessing more than 50 kilograms of marijuana intending to distribute it and
impersonating a federal officer, and the district court sentenced him to a 31-
month prison term. On appeal, Tullos argues that the factual basis was
*
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should not be published and is not precedent except under the limited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. 09-40292
insufficient to support his guilty plea on the impersonation charge because, he
contends, it did not establish that he committed every element of the crime.
Tullos did not object to the factual basis in the district court; thus, we
review for plain error the decision that the factual basis was adequate. See
United States v. London, 568 F.3d 553, 558 (5th Cir.), petition for cert. filed (Aug.
11, 2009) (No. 09-5844). Before a district court may accept a guilty plea, it must
determine that there is a sufficient factual basis to support it. F ED. R. C RIM.
P. 11(b)(3); United States v. Hildenbrand, 527 F.3d 466, 474 (5th Cir.), cert.
denied, 129 S. Ct. 437 (2008). The factual basis for the guilty plea must be
specific enough to allow the court to determine that the defendant’s conduct
constituted a crime. See United States v. Castro-Trevino, 464 F.3d 536, 540 (5th
Cir. 2006). In assessing whether the factual basis is sufficient, we may examine
the entire record of the proceedings, United States v. Vonn, 535 U.S. 55, 74
(2002), including the facts adduced in the plea agreement and during the
colloquy, United States v. Palmer, 456 F.3d 484, 489 (5th Cir. 2006), the factual
findings in the presentence report (PSR) if the court explicitly relies on it, and
“fairly drawn” inferences from evidence presented after the plea but before or at
sentencing. Hildenbrand, 527 F.3d at 475.
A person is guilty of impersonating a federal officer if, as relevant here, he
(1) falsely pretends to be a federal officer and (2) acts as such. 18 U.S.C. § 912;
United States v. Randolph, 460 F.2d 367, 368 (5th Cir. 1972). The second prong
is satisfied where the defendant engages in “any overt act consistent with the
assumed character.” United States v. Cohen, 631 F.2d 1223, 1224 (5th Cir.
1980). Furthermore, this court requires proof of a third element—that the
impersonator act with fraudulent intent, that is, intent to deceive another to act
differently than he would have acted absent the deception. Randolph, 460 F.2d
at 370.
The plea colloquy, the PSR findings, and the district court’s statements at
sentencing sufficiently support the determination that Tullos’s conduct met all
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No. 09-40292
of the elements of the impersonation offense. During the plea colloquy, Tullos
admitted misrepresenting to border patrol agents that he was a member of the
Coast Guard. He also conceded that he placed clothing with the Coast Guard
insignia in the front seat of the car and told the agents that he was traveling on
official orders from the Coast Guard. The PSR, which the district court adopted,
reaffirmed these facts and noted that Tullos pretended to be a Coast Guard
serviceman so that he “would not be closely scrutinized” by border patrol agents.
Tullos did not object the PSR’s factual findings. Furthermore, the district court
noted at sentencing that Tullos’s motive for impersonating a serviceman was to
enable him “to run drugs.” Thus, contrary to Tullos’s assertions, the record
supports the conclusion that he did more than merely misrepresent that he was
a member of the Coast Guard. There is a factual basis for all three elements of
the offense—that Tullos pretended to be a federal officer when he told agents
that he was a member of the Coast Guard, that he acted as a member of the
Coast Guard when he prominently displayed clothing bearing the Coast Guard
insignia in the front seat of his truck and told agents that he was traveling on
official orders from the Coast Guard, and that he intended to deceive the border
agents so that they would be less likely to inspect his cargo.
The judgment of the district court is AFFIRMED.
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