United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-51335
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELIAS CARRILLO, JR., also known as Lie,
also known as Old Boy,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:05-CR-48-2
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Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Elias Carrillo, Jr., appeals his guilty-plea conviction for
conspiracy to manufacture, distribute, and possess with intent to
distribute more than 50 grams of crack cocaine in violation of
21 U.S.C. §§ 841(a)(1) and 846. He contends that the factual
basis was insufficient to support his conviction because it
failed to establish the essential elements of the crime of
conspiracy. Because Carrillo did not challenge the sufficiency
of the factual basis in the district court, review is for plain
*
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this opinion should not be published and is not precedent except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. 05-51335
-2-
error. United States v. Angeles-Mascote, 206 F.3d 529, 530 (5th
Cir. 2000). The Government does not seek to invoke the appeal
waiver and has thus waived the issue. See United States v.
Story, 439 F.3d 226, 230-31 (5th Cir. 2006).
The factual basis provided ample evidence from which to
infer that a conspiracy to manufacture, distribute, and possess
with intent to distribute more than 50 grams of crack cocaine
existed and that Carrillo participated in the conspiracy
knowingly and voluntarily. The factual basis detailed a
conspiracy beginning on or about April 15, 1996, and continuing
through March 16, 2005, involving 21 named conspirators and
others. The factual basis described at least nine coded phone
calls between Carrillo and named and unnamed coconspirators
discussing various drug trafficking activities. Further, the
factual basis provided that on September 1, 2004, Carrillo aided
and abetted an unnamed coconspirator in the possession with
intent to distribute of more than 50 grams of crack cocaine, as
well as distribution of 5 grams of crack cocaine on August 24,
2004. Therefore, the factual basis was sufficient to support the
district court’s acceptance of Carrillo’s guilty plea.
Accordingly, Carrillo has failed to establish plain error, and
the district court’s judgment is AFFIRMED.