Case: 09-51106 Document: 00511303030 Page: 1 Date Filed: 11/23/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 23, 2010
No. 09-51106 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA
Plaintiff- Appellee
v.
FERNANDO GARCIA-PAULIN
Defendant- Appellant
Appeal from the United States District Court
for the Western District of Texas
Before KING, GARWOOD, and DAVIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Defendant Fernando Garcia-Paulin appeals his conviction for bringing an
alien to the United States under 8 U.S.C. § 1324(a)(1)(A)(i) on the ground that
the factual basis the government presented to support his guilty plea is
insufficient to support a conviction under this statute. We agree and vacate the
conviction.
I.
Garcia-Paulin pleaded guilty to Count 1 of the indictment charging him
with a violation of 8 U.S.C. § 1324(a)(1)(A)(i) and 18 U.S.C. § 2 (aiding and
abetting). The indictment charged that Garcia-Paulin “knowing and in reckless
disregard of the fact that Jaime Cajica Cano, an alien, had not received prior
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No. 09-51106
official authorization to come to, to enter, or to reside in the United States, did
bring or attempt to bring said alien to the United States and upon arrival said
alien was not immediately brought and presented to an appropriate immigration
officer at a designated port of entry.” The indictment also charged that Garcia-
Paulin “and others did aid and abet one another in said violation of law” and
that the “offense was committed for the purpose of commercial advantage and
private financial gain.”
The factual basis accompanying Garcia-Paulin’s plea agreement stated as
follows:
Jamie Cajica-Cano, a citizen and national of Mexico, contacted the
defendant because he, Cajica-Cano, heard the defendant could
obtain legal documents to work in the United States. The defendant,
and others, aiding and abetting one another, did assure
Cajica-Cano, that they could obtain legal documentation for
Cajica-Cano to enter the United States and work. The defendant
obtained a valid Mexican passport from Cajica-Cano and returned
it to Cajica-Cano with a fraudulent I-551 ADIT stamp placed in the
passport. In exchange, Cajica-Cano paid the defendant $15,000
Mexican pesos.
A valid I-551 ADIT stamp would have permitted Cajica-Cano to
enter the United States for limited purposes, but the fraudulent
stamp did not give Cajica-Cano any right to be in or to remain in the
United States. The defendant knew the I-551 ADIT stamp was
fraudulent and invalid when he provided it to Cajica-Cano.
Nevertheless, the defendant told Cajica-Cano the stamp would
permit him, Cajica-Cano, to work in the United States, but would
[sic] he must cross illegally, as the stamp would not permit entry at
the port of entry.
Cajica-Cano crossed into the United States illegally near Presidio,
Texas, in the Western District of Texas, as instructed by defendant,
where he met his girlfriend. Cajica-Cano and his girlfriend then
proceeded north on Highway 67 to the Border Patrol checkpoint
south of Marfa, Texas. When questioned by Border Patrol agents as
to his right to be in the United States, Cajica-Cano, presented his
passport with the false stamp. When confronted with the fact his
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stamp was fraudulent, Cajica-Cano identified the defendant from a
photo lineup as the person who sold him the stamp.
The defendant crossed into the United States on March 24, 2009,
where he was arrested by immigration and customs enforcement
agents pursuant to a warrant. The defendant was advised of his
rights, which he freely and intelligently waived. The defendant
admitted that he and others, aiding and abetting one another, did
bring and attempt to bring aliens into the United States, knowing
the aliens did not have permission to enter or reside in the United
States. The defendant admitted to procuring false I-551 stamps for
aliens to use to enter into the United States, knowing the stamps
were fraudulent and invalid. The defendant did so for private
financial gain. One of the aliens who paid defendant for the false
stamp on his passport was Cajica-Cano.
The defendant admits, that he and others, aiding and abetting one
another, knowing that Cajica-Cano had not received authorization
to enter the United States, did bring or attempt to bring the
Cajico-Cano [sic], an alien to the United States, by providing a false
immigration stamp to Cajica-Cano’s passport. The defendant
instructed Cajico-Cano [sic] to avoid inspection when he entered the
United States by immigration officers. The offense was committed
for financial gain.
Garcia-Paulin acknowledged that he had gone over this document with his
attorney and that the facts were correct and supported his plea of guilty to count
one.
The district court found Garcia-Paulin guilty based on his plea. Garcia-
Paulin then appealed his conviction.1
1
The district court entered final judgment on September 30, 2009. Garcia-Paulin filed
a pro se letter dated November 3, 2009, requesting the appointment of counsel to file an
appeal, and the letter was filed into the record on November 5, 2009. The district court
considered the letter as a notice of appeal and granted Garcia-Paulin's request for
appointment of counsel. The period for filing a timely notice of appeal elapsed on October 14,
2009. See Fed. R. App. P. 4(b)(1)(A). The district court may extend the time for filing a notice
of appeal by an additional 30 days if "excusable neglect" or "good cause" is found. See Fed. R.
App. P. 4(b)(4). A district court's grant of a motion to appoint counsel constitutes an implied
finding of excusable neglect when an untimely notice of appeal has been filed. See United
States v. Lister, 53 F.3d 66, 68 (5th Cir. 1995); see also United States v. Quimby, 636 F.2d 86,
89 (5th Cir. 1981)(ruling on motion to appoint counsel and grant of leave to appeal in forma
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II.
We review guilty pleas for compliance with Rule 11. United States v.
Castro-Trevino, 464 F.3d 536, 540 (5th Cir. 2006). Under Rule 11(b)(3), the
district court must, before entering judgment on a guilty plea, satisfy itself that
there is a factual basis for the plea. Id. This examination of the relation between
the acts the defendant admits and the law is “designed to ‘protect a defendant
who is in the position of pleading voluntarily with an understanding of the
nature of the charge but without realizing that his conduct does not actually fall
within the charge.’” McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166,
1171 (1969)(quoting Fed. R. Crim.P. 11, Notes of Advisory Committee on
Criminal Rules).
A district court’s acceptance of a guilty plea is a factual finding which is
generally reviewed under the clearly erroneous standard. However, Garcia-
Paulin concedes that because he is questioning the sufficiency of the factual
basis for his guilty plea for the first time on appeal, review is for plain error.
United States v. Angeles-Mascote, 206 F.3d 529, 530 (5th Cir. 2000). Under plain
error review, Garcia-Paulin must show that “(1) there is an error; (2) the error
is clear and obvious; and (3) the error affects his substantial rights.” Castro-
Trevino, 464 F.3d at 541. Relief for plain error is tied to a prejudicial effect.
Even when plain error is established, we will not vacate the judgment unless the
error “seriously affects the fairness, integrity, or public reputation of the
proceedings.” Id. To show prejudice, Garcia-Paulin “must show a reasonably
probability that, but for the error, he would not have entered the plea.” Id.,
pauperis constituted finding of excusable neglect). Thus, the district court's order appointing
appellate counsel for Garcia-Paulin amounted to a finding of excusable neglect, and the notice
of appeal was timely filed.
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quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)(which
modified Angeles-Mascote’s plain error analysis).2
III.
Garcia-Paulin argues that the facts presented in his factual basis are
insufficient to support a conviction for the offense of bringing an alien into the
United States under § 1324(a)(1)(A)(i). In determining the adequacy of a factual
basis, the trial court must compare “(1) the conduct to which the defendant
admits with (2) the elements of the offense charged in the indictment or
information.” United States v. Marek, 238 F.3d 310, 315 (5th Cir.2001) (en
banc). In reviewing for plain error, this court must determine the elements of
the crime and compare each element to the facts admitted by Garcia-Paulin in
the factual basis to determine if there was error. Id.
The statute in question provides for a criminal penalty of not more than
10 years for:
Any person who--
(i) knowing that a person is an alien, brings to or attempts to bring
to the United States in any manner whatsoever such person at a
place other than a designated port of entry or place other than as
designated by the Commissioner, regardless of whether such alien
has received prior official authorization to come to, enter, or reside
in the United States and regardless of any future official action
which may be taken with respect to such alien.
See § 1324(a)(1)(A)(i), (B)(i). If guilty of aiding or abetting the acts
described above, the penalty is limited to not more than five years. See
§ 1324(a)(1)(A)(v)(i), (B)(ii).
2
Garcia-Paulin’s plea agreement included a waiver of his right to appeal. However,
if his plea was not supported by an adequate factual basis, the waiver of appeal provision in
his plea agreement is unenforceable. Id.; see United States v. Baymon, 312 F.3d 725, 727-28
(5th Cir. 2002). If the factual basis is determined to be sufficient, then he has waived his right
to appeal.
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The key question in this analysis is whether the defendant “[brought] or
attempted to bring in any manner whatsoever” an alien into the United States.
In addressing this question, the structure of § 1324 is instructive. Subsection
(a)(1)(A)(i) makes it a crime to bring or attempt to bring an alien into the United
States. Subsection (a)(1)(A)(ii) makes it a crime to transport or attempt to
transport an alien within the United States. Subsection (a)(1)(A)(iii) makes it
a crime to conceal or harbor an illegal alien and subsection (a)(1)(A)(iv) makes
it a crime to encourage or induce an alien “to come to, enter, or reside in the
United States.”
We have found no case where a defendant has been convicted under clause
(i) of this statute for “bringing” an alien into the United States except where the
defendant accompanied or arranged to have the alien accompanied (as in a
smuggling operation) across the border into the United States. For example, in
United States v. Washington, 471 F.2d 402, 404-05 (5th Cir. 1973), this Court
pointed to several actions by Washington which supported its conclusion that the
defendant’s conduct constituted “bringing”:
Here Washington took money from each alien, gave each of them
false identification, instructed each of them on how to use the
identification to clear immigration officials, decided on the means of
transportation to be used in reaching the United States, purchased
airline tickets to the United States for each of them, personally
handled the presentation to the airline of at least one alien's ticket,
accompanied them to the United States, and waited for them at the
airport until one of them was detained for failing to pass an initial
inspection.
Id. at 405. The court also noted a distinction between “bringing” and persuading
or aiding an alien to take himself to the border and cited McFarland v. United
States, 19 F.2d 805 (6th Cir. 1927) with approval for the idea that “bringing”
requires “active conduct on the part of the defendant.”
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The above cases are consistent with a holding by the D.C. District Court
that
The cases applying § 1324 support the conclusion that “encouraging
or inducing” is the correct charge to bring against those who help
others travel to or enter the United States illegally, while “bringing
to”correctly charges persons who not only help, but also accompany
aliens, or lead them, or meet them at the border.
United States v. Assadi, 223 F.Supp.2d 208, 210 (D.D.C. 2002). In Assadi, the
defendant obtained false passports for the aliens, bought airline tickets for them,
procured boarding passes and took them to the airport. He instructed the aliens
to destroy their travel documents once airborne and to ask for asylum when they
arrived in the U.S. Because the defendant did not travel with the aliens on the
flight, his acts amounted to encouraging the aliens to enter the U.S. illegally, but
not bringing them to the U.S. See also U.S. v. Yoshida, 303 F.3d 1145 (9th Cir.
2002)(Defendant guided aliens to aircraft heading to the U.S., led them to the
gate, assisted them in boarding, escorted them on the plane and accompanied
them on the flight. This was sufficient to prove “bringing.”); United States v.
Aguilar, 883 F.2d 662, 684 (9th Cir. 1989)(Giving false papers to alien, coaching
her to lie to immigration officials and escorting her supported a finding of
“bringing”); United States v. Wishart, 582 F.2d 236, 239-41 (2d Cir.
1978)(Affirming conviction under § 1324(a)(1) for bringing based on defendant’s
action in giving alien false papers to enable his entry and driving alien across
the border.) A conviction under this statute has also been upheld where the
defendant did not travel with the aliens across the border but met them on the
United States side within a few yards after they walked across the border.
United States v. Aslam, 936 F.2d 751, 754-55 (2d Cir. 1991).
Nothing in the factual basis in this case supports a finding that Garcia-
Paulin “brought” the aliens to the United States as that term is uniformly
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understood in the above cases. Supplying a fraudulent passport stamp and
advising the alien that the stamp would only allow him to work in the United
States after he surreptitiously entered the country does not establish that
Garcia-Paulin “brought” the alien to the United States as is required to support
a guilty plea under § 1324(a)(1)(A)(i). Garcia-Paulin had no active role in the
alien’s entry into the United States and the government included no facts in the
factual basis reflecting that he accompanied the alien or directed anyone else to
help the alien cross the border.
Nor does the factual basis support an aiding or abetting conviction under
the related statute, § 1324(a)
[A]iding and abetting the principal in a “bringing to” offense . . .
criminalizes the act of aiding, counseling, inducing or encouraging
not the alien but the principal, the person or venture who is illegally
bringing the alien to the United States.
United States v. Singh, 532 F.3d 1053, 1059 (9th Cir. 2008). An aiding and
abetting charge is appropriate when the defendant assists a principal in an
operation designed to smuggle aliens into the United States. For example in
United States v. Villanueva, 408 F.3d 193, 201-02 (5th Cir. 2005), the defendant
acted as a guide in a smuggling conspiracy to help the aliens in their effort to
enter the United States illegally, which was sufficient to support an aiding and
abetting conviction. However, the defendant cannot aid and abet only the alien.
Singh, 532 F.3d at 1059. No co-conspirators are identified in the indictment or
factual basis to establish the existence of a principal whom Garcia-Paulin aided
or abetted.
The government argues that the factual basis read in conjunction with the
indictment’s express reference to § 1324(a)(1)(A)(i) provides ample support for
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the guilty plea. However the indictment does nothing more than track the
language of the statute.
If sufficiently specific, an indictment or information can be used as
the sole source of the factual basis for a guilty plea. United States v.
Bachynsky, 949 F.2d 722, 730 (5th Cir.1991); United States v.
Boatright, 588 F.2d 471, 475 (5th Cir.1979). The superseding
information in this case, however, is not sufficiently specific. While
it states that Adams concealed Ramon Martinez's violation of the
money laundering statute, the information fails to allege any facts
which would indicate that Adams took an affirmative step to conceal
the crime. Cf. Boatright, 588 F.2d at 475 (concluding that an
indictment is not adequate to serve as the factual basis for a plea of
guilty to a conspiracy charge when the indictment “fails to allege
any facts tying [the defendant] to the conspiracy.”).
U.S. v. Adams, 961 F.2d 505, 509 (5th Cir. 1992). Similarly, the indictment in
this case does not include any supporting facts to establish “bringing.” The
recital of the statutory requirements in the indictment does not correct the
deficiency. Even the case relied on by the government establishes this point. In
United States v. Anaya, 509 F. Supp. 289, 297 (S.D. Fla. 1980)(en banc), the
court stated that “subsection (a)(1) was directed towards those who are directly
involved in the physical ingress and subsection (a)(4) toward those who
otherwise act as accessories.” The concurring opinion notes that “[b]y adding the
offense of ‘encouraging or inducing’ illegal entry . . . Congress completed its
statutory scheme by legislating against those whose conduct is not so active as
to fall within the prohibitions of” bringing an alien into the United States. Id.
at 301.
IV.
Accordingly, we conclude that the government provided an insufficient
factual basis to support Garcia-Paulin’s conviction as plainly required by Federal
Rule of Criminal Procedure 11(b)(3). The error was therefore clear or obvious.
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In addition, it affected Garcia-Paulin’s substantial rights and the government
does not argue to the contrary. We are satisfied that Garcia-Paulin would not
have pled guilty to a statutory offense that subjected him to a prison sentence
if he had realized that the factual basis relied on by the court and the
government to support the conviction on that count failed to show that his
conduct violated the statute. See McCarthy v. United States, 394 U.S. 459, 89
S.Ct. 1166, 1171 (1969); United States v. Dominguez-Benitez, 542 U.S. 74, 80-83
(2004); United States v. Ogbemudia, 364 Fed. Appx. 72 (5th Cir.
2010)(unpublished); United States v. Denson, 183 Fed. Appx. 411 (5th Cir.
2006)(unpublished). We exercise our discretion to correct this error by vacating
Garcia-Paulin’s conviction and remanding for further proceedings.
VACATED and REMANDED.
10