United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
June 13, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-41303
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE SOSA-FUENTES,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(L-02-CR-436-02)
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jose Sosa-Fuentes appeals his guilty plea conviction for
possession with intent to distribute more than 100 kilograms of
marijuana, in violation of 21 U.S.C. § 841(a) and (b). He
contends: the factual basis was insufficient to support his guilty
plea as required by FED. R. CIV. P. 11(b)(3) (formerly 11(f)
(amended 1 December 2002)); the district court did not adequately
explain the nature of the charge as required by FED. R. CIV. P.
*
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that this opinion should not be published and is not precedent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.
11(b)(1) (formerly 11(c)(1) (amended 1 December 2002)); and 21
U.S.C. § 841(a) and (b) are unconstitutional in the light of
Apprendi v. New Jersey, 530 U.S. 466 (2000).
Sosa’s contentions are raised for the first time on appeal;
therefore, they are reviewed only for plain error. See United
States v. Vonn, 535 U.S. 55, __, 122 S. Ct. 1043, 1046 (2002);
United States v. Marek, 238 F.3d 310, 314 (5th Cir.) (en banc)
(applying plain error review, not any evidence standard, to
sufficiency challenge under Rule 11(f) (amended as Rule 11(b)(3)),
cert. denied, 534 U.S. 813 (2001). For plain error, we must find
a clear or obvious error that affected substantial rights.
Generally, we will reverse for such error only if not correcting it
would seriously affect the fairness, integrity, or public
reputation of judicial proceedings. E.g., Marek, 238 F.3d at 315.
The factual basis for Sosa’s plea stated: Sosa was found near
eight sacks of marijuana; the marijuana weighed approximately 190
kilograms; and Sosa confessed and judicially admitted to “knowingly
and intentionally possessing the marijuana with the intent to
distribute it”. At rearraignment, Sosa was advised: he was
pleading guilty to knowingly possessing marijuana with the intent
to distribute it; and the amount was alleged to be more than 100
kilograms. Based upon the foregoing, the district court’s finding
there was a sufficient factual basis for Sosa’s guilty plea was not
clear or obvious error. Id. The record also indicates that Sosa
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understood the nature of the charge; he has failed to meet his
plain error burden with respect to his contention under Rule
11(b)(1). See United States v. Reyes, 300 F.3d 555, 559 (5th Cir.
2002).
Concerning the contention that 21 U.S.C. § 841 is facially
unconstitutional in the light of Apprendi, Sosa concedes his claim
is foreclosed by circuit precedent; he raises it only to preserve
it for Supreme Court review. See United States v. Slaughter, 238
F.3d 580, 582 (5th Cir. 2000), cert. denied, 532 U.S. 1045 (2001).
AFFIRMED
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