United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 31, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30144
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERMAN ROBINSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 01-CR-353-1
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Herman Robinson pleaded guilty to conspiracy to possess with
the intent to distribute more than 50 grams of cocaine base and
more than 500 grams, but less than five kilograms, of cocaine
hydrochloride and distributing less than 500 grams of cocaine
hydrochloride. On appeal, he contends that his guilty plea as to
the conspiracy count should be set aside as unsupported by the
factual basis. He avers that the factual basis to his guilty
plea attributed 49.2 grams of cocaine base to him but that the
*
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that this opinion should not be published and is not precedent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.
No. 03-30144
-2-
indictment charged him with conspiracy to possess with the intent
to distribute more than 50 grams of cocaine base. Robinson
contends that the discrepancy between the factual basis and the
indictment rendered his plea invalid.
Because Robinson did not challenge the factual basis in the
district court, review is for plain error only. United States v.
Vonn, 122 S. Ct. 1043, 1046 (2002). The district court did not
plainly err in accepting Robinson’s guilty plea to conspiring to
distribute more than 50 grams of cocaine base as alleged in the
indictment. Robinson admitted under oath at rearraignment that
he was guilty of a more-than-50-gram conspiracy. See FED. R.
CRIM. P. 11(f); United States v. Adams, 961 F.2d 505, 508-09 (5th
Cir. 1992). Even if it is assumed that Robinson admitted to
conspiring to possess with the intent to distribute only 49.2
grams of cocaine base, Robinson makes no argument that he was
misled or prejudiced by the discrepancy between the indictment
and the factual basis, and the record does not show prejudice.
See United States v. Phillips, 625 F.2d 543, 546 (5th Cir. 1980).
The judgment of the district court is AFFIRMED.