Case: 19-50508 Document: 00515584567 Page: 1 Date Filed: 09/30/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 30, 2020
No. 19-50508 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff — Appellee,
versus
Daniel Louis Lopez,
Defendant — Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:18-CR-257-1
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Daniel Louis Lopez appeals his conviction and life sentence for
conspiracy to possess with intent to distribute at least 500 grams of a
substance containing methamphetamine. He argues that the district court
*
Pursuant to 5TH CIRCUIT Rule 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opinion should not be published and is not precedent except under the limited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 CIRcuit Rule 47.5.4.
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No. 19-50508
erred in denying his motion to withdraw his guilty plea, and he challenges the
assessment of the two-level enhancement under U.S.S.G. § 2D1.1(b)(12) for
maintaining a premises for the purpose of distributing or manufacturing
drugs.
The district court’s denial of Lopez’s motion to withdraw his guilty
plea is reviewed for abuse of discretion. See United States v. McKnight, 570
F.3d 641, 645 (5th Cir. 2009). Lopez’s argument on this issue implicates only
two of the relevant factors: (1) whether he received close assistance of
counsel and (2) whether his guilty plea was knowing and voluntary. See
United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984). Specifically, he
contends that his trial counsel did not provide close assistance and adequate
representation in advising him about the guidelines range and sentence he
could receive and that his guilty plea therefore was not made knowingly and
voluntarily.
The record shows that Lopez was represented by his trial counsel
throughout the proceedings and that Lopez indicated at his rearraignment
hearing that he and counsel had discussed how the Sentencing Guidelines
generally might apply in his case, he had sufficient time to visit with counsel
and discuss his conspiracy charge and any possible defenses, and he was
satisfied with counsel’s representation. Additionally, Lopez and counsel
discussed entering into a plea agreement, even though Lopez ultimately
pleaded guilty without a plea agreement. Regardless of whether counsel
specifically advised Lopez before rearraignment that his guidelines range
would be life imprisonment, these facts demonstrate that Lopez received
close assistance of counsel. See United States v. Lord, 915 F.3d 1009, 1016
(5th Cir.), cert. denied, 140 S. Ct. 320 (2019); McKnight, 570 F.3d at 647.
Lopez also has not shown that his guilty plea was unknowing or
involuntary. He indicated at rearraignment that he understood his guidelines
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range would be advisory only, he could be sentenced above or below the
guidelines range, and his sentence could be as high as his offense’s statutory
maximum of life imprisonment. Thus, he understood when he pleaded guilty
that he could receive a life sentence.
Furthermore, he indicated at rearraignment that he was pleading
guilty because he committed the offense, his guilty plea was not induced by
any promise, and he was not threatened, coerced, or forced into pleading
guilty. In light of his comments at rearraignment, Lopez has not shown that
the factor of whether his guilty plea was unknowing or involuntary weighed
in favor of withdrawal of the plea. See McKnight, 570 F.3d at 647 & n.2;
United States v. Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001).
Lopez does not brief any argument on the remaining Carr factors, and
he thus also has not shown that the district court abused its discretion based
on any of those factors. See United States v. Washington, 480 F.3d 309, 317
(5th Cir. 2007); see also United States v. Scroggins, 599 F.3d 433, 446-47 (5th
Cir. 2010) (recognizing that appellant waives arguments that he does not
adequately brief). The rule permitting the withdrawal of a guilty plea is not
intended “to allow a defendant to make a tactical decision to enter a plea,
wait several weeks, and then obtain a withdrawal if he believes that he made
a bad choice in pleading guilty.” Carr, 740 F.2d at 345; accord United States
v. Hurtado, 846 F.2d 995, 997 (5th Cir. 1988). Lopez has not shown an abuse
of discretion with regard to the denial of his motion to withdraw his guilty
plea.
With respect to the § 2D1.1(b)(12) enhancement, plain-error review
applies because Lopez did not object to the enhancement in the district court.
See United States v. Benitez, 809 F.3d 243, 249 (5th Cir. 2015); see also Davis
v. United States, 140 S. Ct. 1060, 1061-62 (2020). The district court adopted
the finding in the presentence report (PSR) that the enhancement applied
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No. 19-50508
because Lopez “placed” a co-conspirator “in an apartment for the purpose
of distributing methamphetamine.” Lopez argues that the facts in the PSR
failed to establish that he had the requisite possessory interest or level of
control to have “maintained” the apartment for purposes of § 2D1.1(b)(12)
or that a primary use of the apartment was the distribution or manufacture of
drugs.
“[A] district court may adopt the findings of the PSR without
additional inquiry if those facts have an evidentiary basis with sufficient
indicia of reliability and the defendant does not present rebuttal evidence or
otherwise demonstrate that the information is materially unreliable.” United
States v. Hearns, 845 F.3d 641, 650 (5th Cir. 2017) (internal quotation marks
and citation omitted); accord United States v. Fuentes, 775 F.3d 213, 220 (5th
Cir. 2014). For purposes of plain-error review, the application of the
§ 2D1.1(b)(12) enhancement is not clear or obvious error if it is “subject to
reasonable dispute.” Puckett v. United States, 556 U.S. 129, 135 (2009); see
United States v. Randall, 924 F.3d 790, 796 (5th Cir. 2019).
Any error in applying the enhancement is at least subject to reasonable
dispute based on the uncontested and unrebutted information in the PSR,
which was derived from investigative reports of law enforcement and thus
could be properly found to be reliable. See United States v. Fuentes, 775 F.3d
213, 220 (5th Cir. 2014); United States v. Vela, 927 F.2d 197, 201 (5th Cir.
1991). Accordingly, Lopez has failed to meet his burden under the plain error
standard of demonstrating that the assessment of the § 2D1.1(b)(12)
enhancement was clear or obvious error. See Randall, 924 F.3d at 796.
AFFIRMED.
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