Case: 11-50109 Document: 00511689806 Page: 1 Date Filed: 12/08/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 8, 2011
No. 11-50109
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TONY EDWARD BOGUSZEWICZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:10-CR-138-2
Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Tony Edward Boguszewicz appeals his conviction following his guilty plea
to damaging an energy facility, causing a significant interruption and
impairment of the function of the rig and damages in excess of $5000.
Boguszewicz argues that the district court lacked jurisdiction to enter judgment
based on a violation of 18 U.S.C. § 1366 because it does not apply to moveable
equipment that is a component of a drilling rig that is at a location for the
purpose of having maintenance and service performed on the drilling rig. He
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-50109 Document: 00511689806 Page: 2 Date Filed: 12/08/2011
No. 11-50109
asserts that a facility the produces or stores electricity or fuel is not moveable
and that its moveable component parts do not fall within the statutory definition
of a “facility.”
Boguszewicz’s assertion that the district court lacked jurisdiction over the
case is without merit. The prosecution of Boguszewicz under § 1366 is a case
arising under the laws of the United States. U.S. Const. art. III, § 2 cl. 1. More
specifically, it is a case involving a federal crime, over which federal district
courts have jurisdiction pursuant to 18 U.S.C. § 3231. See United States v.
Robinson, 119 F.3d 1205, 1212 n.4 (5th Cir.1997). Thus, the district court had
jurisdiction to adjudicate the matter.
A district court cannot enter a judgment of conviction based on a guilty
plea unless it is satisfied that there is a factual basis for the plea. FED. R. CRIM.
P. 11(f); United States v. Reasor, 418 F.3d 466, 469 (5th Cir. 2005). “A guilty
plea does not waive the right of a defendant to appeal a district court’s finding
of a factual basis for the plea on the ground that the facts set forth in the record
do not constitute a federal crime.” Reasor, 418 F.3d at 470. Because
Boguszewicz did not object to the lack of a factual basis for the plea, review is for
plain error. See United States v. Angeles-Mascote, 206 F.3d 529, 530 (5th Cir.
2000).
As both parties acknowledge, there is no case law determining whether or
not an energy facility includes its mobile parts. For an error to be “plain,” it
must be “clear under current law.” United States v. Olano, 507 U.S. 725, 734
(1993). Because there is no precedent in any circuit on this issue, any error
committed was not plain or obvious. Boguszewicz cannot demonstrate that the
district court plainly erred in finding that there was a factual basis supporting
his plea.
The judgment is AFFIRMED.
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