United States v. Servando Alvarado-Casas

Case: 12-40295 Document: 00512240551 Page: 1 Date Filed: 05/14/2013

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
May 14, 2013

No. 12-40295 Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

SERVANDO ALVARADO-CASAS, also known as El Chino,

Defendant - Appellant

Appeal from the United States District Court
for the Southern District of Texas

Before DAVIS, GRAVES, and HIGGINSON, Circuit Judges.1
HIGGINSON, Circuit Judge:
For the first time on appeal, Defendant-Appellant Servando Alvarado-Casas
challenges his federal guilty plea conviction of conspiracy to commit aggravated
alien transporting, arguing principally that his plea lacks an adequate factual
basis, and that the district court misadvised him as to his sentencing exposure,
rendering his plea involuntary. Concluding that the district court’s error in
accepting his guilty plea, if any, was not plain, and that its admonishment
regarding his sentencing exposure, though clear error, did not materially affect
his decision to plead guilty, we AFFIRM.

1
Graves, Circuit Judge, concurs in the judgment only.
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FACTS AND PROCEEDINGS
Servando Alvarado-Casas was charged by indictment with twelve counts
of transporting unlawful aliens causing serious bodily injury to, or placing in
jeopardy the life of, any person, and one count of conspiring to commit that
offense. Pursuant to a signed plea agreement, Alvarado-Casas agreed to plead
guilty to the conspiracy count and to waive his right to appeal his conviction and
sentence in exchange for the government’s promise to dismiss the remaining
counts in the indictment and to make certain sentencing recommendations. The
plea waiver reads as follows:
Defendant waives his/her right to appeal both the conviction and the
sentence imposed. Defendant is aware that 18 U.S.C. § 3742 affords
a defendant the right to appeal the sentence imposed. The
defendant waives the right to appeal the sentence imposed or the
manner in which it was determined. The defendant may appeal only
(a) a sentence imposed above the statutory maximum; or (b) an
upward departure from the Sentencing Guidelines which had not
been requested by the United States, as set forth in 18 U.S.C. §
3742(b). Additionally, the defendant is aware that 28 U.S.C. § 2255,
affords the right to contest or “collaterally attack” a conviction or
sentence after the conviction or sentence has become final. The
defendant waives the right to contest his/her conviction or sentence
by means of any post-conviction proceeding.
At rearraignment, the district court asked Alvarado-Casas if he had read
the plea agreement, had understood its terms, and had signed it voluntarily.
Alvarado-Casas responded that he had. The district court admonished Alvarado-
Casas that he faced up to ten years of imprisonment, and would not be allowed
to withdraw his guilty plea if the sentence imposed was more severe than he
expected. Alvarado-Casas responded that he understood. The district court
explained the elements of the conspiracy offense and asked Alvarado-Casas if he
understood them. Alvarado-Casas responded that he did. The government then
gave the following factual basis statement:

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[O]n November 24th of 2009, border patrol agents advised ICE of a
motor vehicle accident in which 17 illegal aliens and the driver [of
the] vehicle had gone off an embankment, approximately a 40-foot
drop. Border patrol agents and ICE officials responded to the area.
They were able to determine that the 17 individuals that were in the
bed of the pickup truck were illegally present in the United States.
The majority were from Guatemala with, I believe, three Mexican
citizens. One driver of the vehicle was identified as Patricio
Rebollar. He, as well as the aliens were all transported to
surrounding area hospitals. . . . ICE agents spoke to Patricio
Rebollar, and he advised that he was, in fact, the driver of the
pickup trunk and that he was transporting illegal aliens. He
indicated that he was transporting the aliens for an individual that
he identified as Chino. ICE agents were able to identify the
individual that he identified as Chino as Servando Alvarado-Casas.
After confirming that the government’s statement was accurate, Alvarado-Casas
pleaded guilty to the conspiracy offense, and the court accepted his plea.
At sentencing, the district court adopted the presentence report (“PSR”)
and calculated Alvarado-Casas’s Guidelines range to be 188 to 235 months of
imprisonment based on a total offense level of 34 and a criminal history category
of III.2 Alvarado-Casas made a number of objections, including that separate
adjustments to his offense level for use and transportation of a minor constituted
impermissible double counting. The district court overruled the “double
counting” objection, and sentenced Alvarado-Casas to 190 months of
imprisonment. Alvarado-Casas did not file a timely notice of appeal.
In June 2008, Alvarado-Casas filed a § 2255 motion challenging his
conviction and sentence on the ground that his counsel provided constitutionally
ineffective assistance by failing to file a timely notice of appeal. After holding
an evidentiary hearing, the district court dismissed the § 2255 motion without

2
The PSR conservatively estimates that the sophisticated alien smuggling operation,
led by Alvarado-Casas with assistance from a Mexican cartel, smuggled over 2,500 unlawful
aliens to the United States over a five-year period, and received between $1,000 and $10,000
per alien.

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prejudice, granted Alvarado-Casas leave to file an “out-of-time” direct appeal,
and appointed counsel for that purpose.3 This appeal followed.
DISCUSSION
On appeal, Alvarado-Casas argues that: (1) his conviction lacks an
adequate factual basis because the stipulated facts did not establish that he
personally caused serious injury to, or placed in jeopardy the life of, another
person during and in relation to the offense; (2) his guilty plea was involuntary
because the district court misadvised him of the nature of the conspiracy offense
and the statutory maximum it carried and failed to ensure that he understood
the consequences of waiving his right to appeal; and (3) his sentence was
improperly calculated because it was based on separate adjustments to his
offense level for use and transportation of a minor, which, he contends,
constituted impermissible double counting.
I. Factual Basis
Rule 11 of the Federal Rules of Criminal Procedure was designed to
“ensure that a guilty plea is knowing and voluntary, by laying out the steps a
trial judge must take before accepting such a plea.” United States v. Vonn, 535
U.S. 55, 58 (2002). One such step is determining that a defendant’s guilty plea
is supported by an adequate factual basis. Fed. R. Crim. P. 11(b)(3) (“Before
entering judgment on a guilty plea, the court must determine that there is a
factual basis for the plea.”). The factual basis requirement “protect[s] a
defendant who may plead with an understanding of the nature of the charge, but
without realizing that his conduct does not actually fall within the definition of
the crime charged.” United States v. Spruill, 292 F.3d 207, 215 (5th Cir. 2002)

3
Because the issue was not briefed by the parties, we take no position on the propriety
of granting leave to file an out-of-time appeal as relief for a Sixth Amendment violation or
whether doing so concomitant with dismissing a defendant’s motion to vacate conforms with
Federal Rule of Appellate Procedure 4(a)(6).

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(quoting United States v. Johnson, 546 F.2d 1225, 1226–27 (5th Cir. 1977))
(internal quotation marks omitted). In reviewing guilty pleas for compliance
with Rule 11(b)(3), the court evaluates whether “the factual conduct to which the
defendant admits is sufficient as a matter of law to constitute a violation of the
statute.” United States v. Marek, 238 F.3d 310, 314 (5th Cir. 2001) (en banc)
(emphases omitted).
The offense of conspiracy to transport unlawful aliens, 8 U.S.C. §
1324(a)(1)(A)(ii) and (v)(I), makes it a crime for a person to conspire to transport
an alien within the United States, knowing or recklessly disregarding the fact
that the alien was unlawfully present, with intent to further the alien’s unlawful
presence. Fifth Circuit Pattern Criminal Jury Instructions § 2.03 (2012). A
person convicted of conspiracy to transport unlawful aliens is subject to a
statutory maximum sentence of 10 years of imprisonment, 8 U.S.C. §
1324(a)(1)(B)(I), unless “during and in relation to” the offense, “the person causes
serious bodily injury (as defined in section 1365 of Title 18) to, or places in
jeopardy the life of, any person,” in which case the statutory maximum increases
to 20 years of imprisonment, § 1324(a)(1)(B)(iii). This “serious bodily injury”
aggravator is an element of a aggravated offense and, as such, must be alleged
in the indictment and proved beyond a reasonable doubt. See United States v.
Williams, 449 F.3d 635, 644–45 (5th Cir. 2006) (citing Apprendi v. United States,
530 U.S. 460 (2000)). For ease of reference, we will refer to this aggravated
offense as “conspiracy to commit aggravated alien transporting.”
Alvarado-Casas argues that his conviction for conspiracy to commit
aggravated alien transporting lacks an adequate factual basis, reasoning that (1)
the offense requires proof that he personally and directly caused serious bodily
injury to, or placed in jeopardy the life of, any person, and (2) the factual basis
statement made by the government at the rearraignment hearing establishes that
Patricio Rebollar, the driver of the truck, and not Alvarado-Casas, the ringleader

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of the alien trafficking operation, caused the serious bodily injury to, and placed
in jeopardy the lives of, the aliens involved.4 Alvarado-Casas points out that
unlike most federal bodily injury and death enhancements, which are triggered
if bodily injury or death “results” from the offense,5 the enhancement provision at
issue here is triggered only if “the person,” the specific defendant whose guilt is at
issue, “causes serious bodily injury . . . to, or places in jeopardy the life of, any
person,” § 1324(a)(1)(B)(iii) (emphasis added). As evidence that this is a
distinction with a difference, Alvarado-Casas contrasts § 1324(a)(1)(B)(iii) to §
1324(a)(1)(B)(iv), which provides that “a violation . . . resulting in the death of any
person [shall] be punished by death or imprisoned for any term of years or for life.”
It is reasonable to infer from the difference in wording of these parallel provisions
of the same statute, he contends, that Congress intended for criminal liability to
attach under § 1324(a)(1)(B)(iii) only where a defendant personally and directly
causes serious bodily injury to, or places in jeopardy the life of, another person.
The government responds that the offenses require only proximate or legal cause.6

4
Alvarado-Casas initially argued that the factual basis statement did not establish that
anyone caused another person serious bodily injury during and in relation to the offense, but
later conceded this point during oral argument.
5
See 18 U.S.C. § 43(b)(3)–(4); 18 U.S.C. § 115(b)(1)(B)(iii)–(iv); 18 U.S.C. § 117(a)(2);
18 U.S.C. § 241; 18 U.S.C. § 242; 18 U.S.C. § 245(b); 18 U.S.C. § 247(d)(1)–(2); 18 U.S.C. §
248(b); 18 U.S.C. § 351(b); 18 U.S.C. § 670(c)(1); 18 U.S.C. § 844(d); 18 U.S.C. § 924(c)(5)(B);
18 U.S.C. § 1038(a)(1)(B)–(C); 18 U.S.C. § 1091(b)(1); 18 U.S.C. § 1347(a); 18 U.S.C. §
1365(a)(3); 18 U.S.C. § 1389(a); 18 U.S.C. § 1581(a); 18 U.S.C. § 1584(a); 18 U.S.C. § 1589(d);
18 U.S.C. § 1590(a); 18 U.S.C. § 1751(b), (d); 18 U.S.C. § 1752(b)(1)(B); 18 U.S.C. §
1864(b)(1)–(3); 18 U.S.C. § 1952(a)(3)(B); 18 U.S.C. § 1958(a); 18 U.S.C. § 2113(e); 18 U.S.C.
§ 2119(2)–(3); 18 U.S.C. § 2155(a); 18 U.S.C. § 2237(b)(2)–(3); 18 U.S.C. § 2281(a)(1); 18 U.S.C.
§ 2291(d); 18 U.S.C. § 2332a(a)–(b); 18 U.S.C. § 2332b(c)(1)(a); 18 U.S.C. § 2340A(a); 18 U.S.C.
§ 2441(a); 21 U.S.C. § 841(b)(1); 21 U.S.C. § 960(b)(1)–(3).
6
The government argues, in the alternative, that it was not necessary to charge and
prove that Alvarado-Casas personally caused serious bodily injury because, under Pinkerton
v. United States, 328 U.S. 640 (1946), he is liable for the reasonably foreseeable acts of his
co-conspirators. But Pinkerton liability arises only when a conspirator is charged with a
substantive offense arising from the actions of a co-conspirator, not where, as here, a
conspirator is charged solely with conspiracy. United States v. Armstrong, 619 F.3d 380, 387

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Alvarado-Casas may challenge the factual basis underlying his guilty plea
notwithstanding his unconditional appeal waiver, United States v. Baymon, 312
F.3d 725, 727 (5th Cir. 2002) (“[E]ven if there is an unconditional plea of guilty
or a waiver of appeal provision in a plea agreement, this Court has the power to
review if the factual basis for the plea fails to establish an element of the offense
which the defendant pled guilty to.”), but because he raises this issue for the first
time on appeal, our review is for plain error, United States v. London, 568 F.3d
553, 558 (5th Cir. 2009). More specifically, to prevail on this claim, Alvarado-
Casas must show that (1) the district court erred in accepting his guilty plea
without a factual basis, (2) the error was plain, (3) there is a reasonable
probability that but for the error, he would not have pleaded guilty, and (4) the
error seriously affected the fairness, integrity, or public reputation of the
proceedings. Id. at 558–59 (citing United States v. Dominguez Benitez, 542 U.S.
74 (2004)).
An error is plain, in this context, if it is “clear or obvious” what the
government must prove to establish the offense, and, notwithstanding that
clarity, the district court accepts a defendant’s guilty plea without an adequate
factual basis. United States v. Garcia-Paulin, 627 F.3d 127, 132 (5th Cir. 2010);
see also United States v. Caraballo-Rodriguez, 480 F.3d 62, 70 (1st Cir. 2007)
(explaining that factual basis error is plain if the defendant’s proposed
interpretation “is compelled by the language of the statute itself, construction

(5th Cir. 2010) (confirming that “Pinkerton liability attaches only to substantive crimes”); Fifth
Circuit Pattern Jury Instructions (Criminal Cases) § 2.22 (2012). In order to trigger Pinkerton
liability in this case, the government would have needed to charge Alvarado-Casas with a
substantive count of aggravated alien transporting, under § 1324(a)(1)(A)(ii) and (a)(1)(B)(iii),
and proffer at rearraignment that Alvarado-Casas, as a conspirator, was liable for the serious
bodily injury directly caused by Rebollar’s reckless driving. See United States v. Bonetti, 277
F.3d 441, 447 (4th Cir. 2002) (affirming jury trial conviction, under Pinkerton, where the
prosecution charged the defendant with a substantive count of harboring an unlawful alien,
in violation of 8 U.S.C. § 1324(a)(1)(A)(iii), and then presented sufficient evidence that the
defendant, as a conspirator, was liable for the serious bodily injury directly caused by his wife).

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of the statute in light of the common law, or binding judicial construction of the
statute”) (emphasis omitted). Conversely, if a defendant’s factual basis
challenge is “novel” or “not entirely clear under existing authority,” United
States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010), or, put differently, if the district
court’s factual basis finding is “subject to reasonable dispute,” United States v.
Broussard, 669 F.3d 537, 550–51 (5th Cir. 2012), a district court’s error in
accepting the guilty plea is not plain.
We perceive no plain error in the district court’s acceptance of Alvarado-
Casas’s sworn statement of guilt, as his proposed interpretation of §
1324(a)(1)(B)(iii) is not compelled by the plain language of the statute or a
binding judicial construction of it. Admittedly, by its terms, § 1324(a)(1)(B)(iii)
appears to limit liability for causing serious bodily injury to the specific
defendant whose guilt is at issue. See discussion supra pp. 5–6. But even if we
were compelled by the language of § 1324(a)(1)(B)(iii) to conclude that the
offense has a personal causation component, that would not resolve the issue
before us; we would still need to decide the degree of causation required (e.g.,
direct causation, but-for causation, substantial-factor causation, command
causation, proximate causation, etc.), an issue not resolved by the plain language
of the statute or our construction hitherto of it. We have twice affirmed
convictions for aggravated alien transporting, but in each instance, the
defendant was personally involved in the accident that resulted in serious bodily
injury so we had no cause to decide the degree-of-causation issue presented here.
See United States v. De Jesus-Ojeda, 515 F.3d 434, 444–45 (5th Cir. 2008)
(affirming jury trial conviction for aggravated alien transporting where the
defendant “personally placed [unlawful aliens] on and in an inner tube and
pulled them across the Rio Grande at night in water over their heads”); United
States v. Garcia-Flores, 207 F. App’x 397, 400–01 (5th Cir. 2006) (per curiam)
(affirming guilty plea conviction for aggravated alien transporting, on plain error

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review, where the defendant, while unlawfully transporting unlawful aliens in
his truck, got into a car accident). These decisions establish that direct, personal
causation satisfies the causation element of the statute, but they do not foreclose
the possibility that the causation element could be satisfied by a showing of
other, more remote degrees of causation, such as proximate causation or
command causation.7 See Trejo, 610 F.3d at 320 (noting that “although [the cases
cited by the defendant] rely on evidence beyond the bare drug transportation
itself, none of them stand for the proposition that such evidence is required as
a matter of law”).
Because neither the plain language of the statute nor our interpretation
of it compels the conclusion that Alvarado-Casas must have been the direct
cause of the serious bodily injury to be criminally liable under § 1324(a)(1)(B)(iii),
we conclude that the district court’s error in accepting Alvarado-Casas’s plea, if
any, was not plain. See Broussard, 669 F.3d at 550 (“[A]s we have never
addressed whether obtaining a phone number and having conversations with a
minor about meeting for illicit sexual activity constitutes a substantial step
toward persuading a minor to engage in illicit sexual activity under §
2422(b)—nor has any intervening decision clarified the issue—any error on the

7
Alvarado-Casas suggests that because we have yet to uphold a conviction for
aggravated alien smuggling against a factual basis challenge where, as here, the defendant
was not the direct or immediate causer of the serious bodily injury, the district court’s error
is clear and obvious, citing Garcia-Paulin. 627 F.3d at 132 (holding that district court’s
acceptance of a defendant’s guilty plea to bringing an unlawful alien into the United States,
under 8 U.S.C. § 1324(a)(1)(A)(I), was plain error in part because the defendant did not
accompany or arrange to have a person accompany the alien across the border, and “[w]e have
found no case where a defendant has been convicted under clause (I) of this statute for
‘bringing’ an alien into the United States except where the defendant accompanied or arranged
to have the alien accompanied (as in a smuggling operation) across the border”). Although the
absence of precedent is relevant to our plainness analysis, id., it is not dispositive. Were it,
the plainness of an error could depend more on the frequency of prosecution than the clarity
of the issue presented. We reiterate that factual basis error is not plain unless the defendant’s
proposed interpretation is compelled by the plain language of the statute or a binding judicial
construction of it.

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district court’s part in accepting Broussard’s plea on the factual basis established
by the evidence could not be plain.”); id. at 550–51 (“[A]ny error the district court
may have committed was not plain as we have never addressed whether an
alleged violation of § 14:81.3 of the Louisiana Revised Statutes constituted
‘sexual activity for which any person can be charged with a criminal offense’
under § 2422(b).”); Trejo, 610 F.3d at 319 (“Variously describing Trejo’s claim as
‘novel’ and ‘not entirely clear under the existing case authority,’ we doom the
case for plain error.”); see also Caraballo-Rodriguez, 480 F.3d at 70–76
(concluding that any error could not be plain because the defendant’s proposed
reading of the statute was not compelled by its plain language or a binding
judicial construction of it).
II. Voluntariness
In addition to determining whether a factual basis exists for the plea,
courts are required by Rule 11 to advise the defendant of “the nature of each
charge to which the defendant is pleading,” Fed. R. Crim. P. 11(b)(1)(G), the
“maximum possible penalty, including imprisonment,” Fed. R. Crim. P.
11(b)(1)(H), and “the terms of any plea-agreement provision waiving the right
to appeal or to collaterally attack the sentence,” Fed. R. Crim. P. 11(b)(1)(N).
Alvarado-Casas submits that the district court erred by (1) misadvising
him of the nature of the charge to which he was pleading guilty, in violation of
Rule 11(b)(1)(G); (2) misadvising him of the statutory maximum sentence for
that offense, in violation of Rule 11(b)(1)(H); and (3) failing to ensure that he
understood the consequences of waiving his right to appeal, in violation of Rule
11(b)(1)(N). Although his appeal waiver does not bar our review of his claims of
Rule 11 error, because Alvarado-Casas raises these claims for the first time on
appeal, review is for plain error. United States v. Oliver, 630 F.3d 397, 411 (5th
Cir. 2011). More specifically, to prevail on his claim that his guilty plea was
involuntary, Alvarado-Casas must show that (1) the district court committed

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Rule 11 error, (2) the error was plain, (3) there is a reasonable probability that
but for the error, he would not have pleaded guilty, and (4) the error seriously
affected the fairness, integrity, or public reputation of the proceedings. Id. at
411–12.
A. Nature of the Offense
At the rearraignment hearing, the district court described the elements of
conspiracy to commit aggravated alien transporting, but did not specify that to
be found guilty of that crime, Alvarado-Casas personally and directly must have
caused the serious bodily injury to, or placed in jeopardy the life of, another
person. As explained previously, if this was error, it was not plain error, and
thus does not entitle Alvarado-Casas to relief on plain error review. See
discussion supra pp. 8–9.
B. Statutory Maximum
The district court misadvised Alvarado-Casas that he faced a maximum
of ten years of imprisonment, when, in fact, conspiracy to commit aggravated
alien transporting carries a statutory maximum of twenty years of
imprisonment, § 1324(a)(1)(B)(iii). The error was compounded, Alvarado-Casas
argues, by defense counsel’s “promise[] that the sentence impose[d] by the court
w[ould] not be more than 10 years.” Alvarado-Casas asserts that if he had
known that he faced a statutory maximum of 20 years of imprisonment, he
would not have pleaded guilty. The government’s principal response is that the
error, if any, had no effect on Alvarado-Casas’s decision to plead guilty. As
evidence, the government points out that (1) the PSR, which Alvarado-Casas
reviewed and discussed with counsel before sentencing, correctly stated that he
faced a statutory maximum of 20 years of imprisonment, (2) Alvarado-Casas did
not object to that aspect the PSR, and (3) Alvarado-Casas did not immediately
object to the sentence imposed, even though it exceeded the 10-year maximum
he purportedly believed was the extent of his sentencing exposure.

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We agree with Alvarado-Casas that it was error for the district court to
inform him that he faced only a ten-year maximum sentence, and that the error
was clear and obvious. See United States v. Still, 102 F.3d 118, 123 (5th Cir.
1996) (“[A] plain reading of Rule 11 requires the district court to inform the
defendant of the . . . maximum possible penalty applicable to each count to which
the defendant is pleading guilty.”); see also United States v. Toruno, 229 F. App’x
296, 297 (5th Cir. 2007) (per curiam) (“The parties do not dispute that the
district court incorrectly admonished [the defendant] regarding the maximum
term of imprisonment and that the error was clear and obvious.”).
We disagree, however, that Alvarado-Casas has carried his burden of
establishing a reasonable probability that but for the error, he would not have
pleaded guilty. Alvarado-Casas does not point to record evidence that he was
prepared and willing to go to trial, United States v. Molina, 469 F.3d 408, 412
(5th Cir. 2006) (affirming guilty plea conviction, despite Rule 11 error, because
the defendant “d[id] not direct this court to any portion of the record supporting
the proposition that the maximum sentence for count three affected his plea
decision”), and the PSR, which he acknowledged reviewing, corrected any
misapprehensions he may have had about his sentencing exposure, United States
v. Vasquez-Bernal, 197 F.3d 169, 171 (5th Cir. 1999) (affirming guilty plea
conviction, despite Rule 11 error, in part because “the presentence report
specifically detailed the punishment range applicable to [the defendant]’s crime”).
It is true, as Alvarado-Casas points out, that “the 190-month prison
sentence actually imposed is 70 months greater than the 10-year maximum
possible prison sentence of which his counsel and the district court advised him,”
and that one consideration in our inquiry is the extent to which a defendant’s
perceived sentencing exposure diverges from his true sentencing exposure,
United States v. Guerra, 94 F.3d 989, 995 (5th Cir. 1996). But it oversimplifies
the matter to focus on this discrepancy alone, and ignore other factors that

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loomed large in the decisional calculus. In exchange for his guilty plea,
Alvarado-Casas received three acceptance-of-responsibility points, which
lowered his Guidelines range from 262–327 months to 188–235 months, a
decrease of six to seven years at both ends. Moreover, as part of the plea
agreement, the government agreed to dismiss twelve substantive counts of
aggravated alien transporting, each of which carried a sentencing exposure of
twenty years of imprisonment. Thus, even if Alvarado-Casas were prepared to
go to trial, it is not reasonably probable that he would have declined the plea
deal and exposed himself to a higher potential Guidelines range and maximum
sentence. See Caraballo-Rodriguez, 480 F.3d at 76 (holding that even if the
district court erred in accepting defendant’s guilty plea without a factual basis,
there was no reasonable probability that but for the alleged error the defendant
would not have pleaded guilty, in light of the “extremely favorable plea deal”
that was “structured to find a significantly less serious offense to which he could
plead”). Our conclusion is buttressed by Alvarado-Casas’s decision not to move
under Rule 11(d)(2) to withdraw his plea after the PSR made him aware of his
true sentencing exposure.
In summary, although Alvarado-Casas can show clear error in this regard,
it does not entitle him to relief because he has not satisfied his burden of
showing that but for the error, he would not have pleaded guilty. See Molina,
469 F.3d at 412; Vasquez-Bernal, 197 F.3d at 171; Caraballo-Rodriguez, 480 F.3d
at 76.
C. Appeal Waiver
At the rearraignment hearing, the district court did not specifically focus
Alvarado-Casas on, or determine that he understood, the appeal waiver
provision. The court did, however, confirm at both rearraignment and
sentencing that Alvarado-Casas reviewed the plea agreement with counsel,
understood its terms, and signed it voluntarily. That is sufficient. United States

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v. Portillo, 18 F.3d 290, 293 (5th Cir. 1994) (“[W]hen the record of the Rule 11
hearing clearly indicates that a defendant has read and understands his plea
agreement, and that he raised no question regarding a waiver-of-appeal
provision, the defendant will be held to the bargain to which he agreed,
regardless of whether the court specifically admonished him concerning the
waiver of appeal.”). Accordingly, we perceive no error, plain or otherwise.
III. Double counting
The Sentencing Guidelines call for a two-level adjustment to a defendant’s
offense level if the defendant “smuggled, transported, or harbored a minor who
was unaccompanied by the minor’s parent or grandparent,” U.S.S.G. §
2L1.1(b)(4) (the “transportation of a minor adjustment”), and a separate
two-level adjustment if the defendant “used or attempted to use a person less
than eighteen years of age to commit the offense or assist in avoiding detection
of, or apprehension for, the offense,” U.S.S.G. § 3B1.4 (the “use of a minor
adjustment”). The commentary to the use of a minor adjustment instructs that
the adjustment should not be applied “if the Chapter Two offense guideline
incorporates this factor.” U.S.S.G. § 3B1.4 cmt. n.2.
Alvarado-Casas argues that because his transportation of a minor
adjustment, a Chapter Two adjustment, incorporates the involvement of a
minor, the application of both enhancements constituted impermissible double
counting. In response, the government invokes the appeal waiver provision of
Alvarado-Casas’s plea agreement, and argues that it bars his sentencing
challenge.
If invoked by the government, an appeal waiver bars a defendant from
challenging his sentence if “the waiver was knowing and voluntary” and it
“applies to the circumstances at hand, based on the plain language of the
agreement.” United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). The
appeal waiver in Alvarado-Casas’s plea agreement provides, in pertinent part:

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 Case: 12-40295 Document: 00512240551 Page: 15 Date Filed: 05/14/2013

No. 12-40295

“The defendant waives the right to appeal the sentence imposed or the manner
in which it was determined. The defendant may appeal only (a) a sentence
imposed above the statutory maximum; or (b) an upward departure from the
Sentencing Guidelines which had not been requested by the United States.” The
plain language of the provision covers this challenge to his sentence, which was
below the statutory maximum and not the product of an upward departure.
Moreover, “[b]ecause [Alvarado-Casas] indicated that he read and understood
the agreement, which includes an explicit, unambiguous waiver of appeal, the
waiver was both knowing and voluntary.” Id. Accordingly, the appeal waiver
bars Alvarado-Casas’s sentencing challenge.
CONCLUSION
For the foregoing reasons, we conclude that the district court’s acceptance
of Alvarado-Casas’s guilty plea, if error, was not plain error; the district court’s
admonishment regarding Alvarado-Casas’s sentencing exposure, though clear
error, did not materially affect his decision to plead guilty; and the appeal waiver
bars Alvarado-Casas’s challenge to his sentence. AFFIRMED.

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