United States v. Gore

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 4, 2007
Charles R. Fulbruge III
Clerk
No. 05-41824
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERRY W. GORE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-232-2
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Before JONES, Chief Judge, and JOLLY and OWEN, Circuit Judges.
PER CURIAM:*
Jerry Wayne Gore, Jr., pleaded guilty without a written plea
agreement to conspiracy to possess with the intent to distribute
500 grams or more of a mixture or substance containing a detectable
amount of methamphetamine. Following United States v. Booker,
543 U.S. 220 (2005), this court vacated Gore’s original sentence
and remanded the case for resentencing. On remand, the district
court found by a preponderance of the evidence that 1,630.11 grams
of “ice” was attributable to Gore. The court sentenced Gore to 327
months of imprisonment and five years of supervised release.
*
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this opinion should not be published and is not precedent except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.
Gore argues that his guilty plea was not knowingly and
intelligently made because neither the factual basis nor the FED.
R. CRIM. P. 11 colloquy mentioned an “ice” conspiracy. He argues
that by failing to advise him of the true nature of the charge to
which he was pleading guilty, the district court failed to comply
with FED. R. CRIM. P. 11(b)(1)(G). Where, as here, a defendant did
not object to Rule 11 error in the district court, this court
reviews for plain error. United States v. Vonn, 535 U.S. 55, 59
(2002).
A guilty plea involves the waiver of several constitutional
rights and, accordingly, must be knowing and voluntary. Boykin v.
Alabama, 395 U.S. 238, 242-44 (1969); see FED. R. CRIM. P. 11. Rule
11 explicitly requires that the district court “inform the
defendant of, and determine that the defendant understands ... the
nature of each charge to which the defendant is pleading.” FED. R.
CRIM. P. 11(b)(1)(G). Rule 11(b)(1)(G)’s requirement regarding the
nature of the charge is fulfilled when the defendant is informed of
the elements of the offense charged. See United States v. Lujano-
Perez, 274 F.3d 219, 224 (5th Cir. 2001).
The fact that the methamphetamine involved in the offense was
“ice” was not a fact that increased the statutory penalty for
Gore’s crime such that it, in effect, became an essential “element”
of the offense charged. See Apprendi v. New Jersey, 530 U.S. 466,
490 , 494 n.19 (2002). Although the involvement of “ice” did
affect Gore’s sentencing guidelines range, the district court
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could, following Booker, “continue to find by a preponderance of
the evidence all facts relevant to sentencing, even if those facts
increase the guideline sentencing range.” United States v.
Johnson, 445 F.3d 793, 798 (5th Cir. 2006), cert. denied, 126 S.
Ct. 2884 (2006). Gore has not established error, plain or
otherwise, in the validity of his guilty plea.
Vonn, 535 U.S. at 59.
Gore’s argument that his post-Booker sentence violated due
process is likewise without merit. See United States v. Mares,
402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005)).
To the extent that Gore argues that Mares was wrongfully decided,
one panel of this court may not overrule a prior panel’s decision
in the absence of an intervening contrary or superseding decision
by this court sitting en banc or by the United States Supreme
Court. See United States v. Ruff, 984 F.2d 635, 640 (5th Cir.
1993).
AFFIRMED.
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