19-2975
United States v. Lopez-Hernandez

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
20th day of October, two thousand twenty.

Present:
            DEBRA ANN LIVINGSTON,
                  Chief Judge
            DENNY CHIN,
                  Circuit Judge,
            KATHERINE POLK FAILLA,
                  District Judge.*
_____________________________________

UNITED STATES OF AMERICA,

                         Appellee,

                v.                                                       19-2975

JOSE EDUARDO LOPEZ-HERNANDEZ,

                         Defendant-Appellant,

RUDIN LOPEZ-LOPEZ, AKA BENJAMIN LOPEZ-URIZAR,
AKA RUDIN WILFREDO LOPEZ-LOPEZ,

                  Defendant.
_____________________________________

*
   Judge Katherine Polk Failla, of the United States District Court for the Southern District of New York,
sitting by designation.


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For Defendant-Appellant:                      DANIEL M. PEREZ, Law Offices of Daniel M. Perez,
                                              Newton, New Jersey 07860

For Appellee:                                 PAUL D. SILVER, Assistant United States Attorney, for
                                              Antoinette T. Bacon, Acting United States Attorney for
                                              the Northern District of New York

        Appeal from a judgment of the United States District Court for the Northern District of

New York (D’Agostino, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

        Defendant-Appellant Jose Eduardo Lopez-Hernandez appeals the district court’s judgment

of criminal conviction and sentence of 60 months’ imprisonment following his plea of guilty to

one count of conspiracy to commit alien smuggling for commercial or private gain in violation of

8 U.S.C. §§ 1324(a)(1)(A)(i), (a)(1)(A)(v)(I), (a)(1)(B)(i), and five counts of alien smuggling for

commercial or private gain in violation of 8 U.S.C. § 1324(a)(2)(B)(ii).             On appeal, Lopez-

Hernandez argues that the district court lacked sufficient factual basis to accept his guilty plea with

respect to all counts, as required by Rule 11(b)(3) of the Federal Rules of Criminal Procedure, and

that the court did not ensure that he understood the nature of the charges against him, as required

by Rule 11(b)(1)(G). We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

        The Court reviews for plain error alleged violations of Rule 11 where the contesting party

raises a Rule 11 objection for the first time on appeal.      United States v. Torrellas, 

,

103 (2d Cir. 2006); United States v. Garcia, 

, 515 (2d Cir. 2009) (citing United States

v. Vonn, 

, 58–59 (2002)).           To demonstrate plain error, Lopez-Hernandez must

establish “that (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable

dispute; (3) the error affected the appellant’s substantial rights; and (4) the error seriously affects


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the fairness, integrity or public reputation of judicial proceedings.”    United States v. Balde, 

, 96 (2d Cir. 2019) (quoting United States v. Bastian, 

, 219–20 (2d Cir. 2014)).

“Within the context of plea proceedings,” Lopez-Hernandez also bears the burden of showing that

“there is a ‘reasonable probability that, but for the error, he would not have entered the plea.’”

F.3d at 515).       Lopez-Hernandez has not demonstrated plain error on

either of the alleged Rule 11 violations.

       I.        Factual Basis for the Plea

       On April 29, 2019, Lopez-Hernandez entered a guilty plea in the Northern District of New

York (D’Agostino, J.) to one count of conspiracy to commit alien smuggling for commercial or

private gain and five counts of alien smuggling for commercial or private gain in violation of 8

U.S.C. § 1324. 1      Lopez-Hernandez now asserts that he did not “admit[] sufficient facts to

establish as a matter of law a violation of alien smuggling.” Specifically, he claims that he did

not admit to “bring[ing] or attempt[ing] to bring [undocumented individuals] to the United States,”

and at most, admitted to the crime of “transport[ing undocumented individuals] within the United


       1
            Alien smuggling is defined under 8 U.S.C. § 1324(a)(1)(A)(i) as applying to anyone who:

                 [K]nowing that a person is an alien, brings to or attempts to bring
                 to the United States in any manner whatsoever such person at a
                 place other than a designated port of entry or place other than as
                 designated by the Commissioner, regardless of whether such alien
                 has received prior official authorization to come to, enter, or reside
                 in the United States and regardless of any future official action
                 which may be taken with respect to such alien.

       8 U.S.C. § 1324 also punishes anyone who “engages in any conspiracy to
       commit” alien smuggling, 8 U.S.C. § 1324(a)(1)(A)(v)(I), and proscribes a
       mandatory minimum sentence for anyone who commits alien smuggling or
       conspiracy thereof “for the purpose of commercial advantage or private financial
       gain,”

States,” as proscribed in § 1324(a)(1)(A)(ii). For the following reasons, we conclude that Lopez-

Hernandez has failed to establish that the district court plainly erred in determining there was a

sufficient factual basis for his plea.

        At the plea hearing, the government proffered its evidence against Lopez-Hernandez.

The government asserted that it could prove that on August 22, 2018, at around 3:00 A.M., U.S.

Border Patrol agents responded to activity near the Canadian border in Chateaugay, New York.

Approaching the area, agents observed a vehicle drive north toward the border and then stop about

a quarter-mile from the border.     Agents then heard the sound of doors slamming and watched the

vehicle drive away from the border. Agents stopped the vehicle at around 3:12 A.M. when it

drove past them.     While the car initially pulled over, it then sped away after the agents exited

their vehicle, and agents subsequently lost sight of it.       Around twenty-five minutes later,

however, agents responded to a car crash in Ellenburg, New York involving the same vehicle, and

encountered two of the car’s occupants—undocumented individuals from Romania referred to as

A.S. and R.B.—who informed agents that there were multiple people in the car who had fled after

the accident.

        Agents ultimately found the other occupants of the car—initially finding three other

undocumented individuals from Romania (referred to as N.M., A.M., and I.G.), and shortly

thereafter finding Lopez-Hernandez and his codefendant Rudin Lopez-Lopez (“Lopez-Lopez”)—

after reported sightings by concerned citizens.   N.M., A.M., and I.G. admitted to agents that they

had entered the United States illegally, and one of the undocumented individuals stated that he

“expected to pay $2,000 in exchange for being smuggled into the United States.”       App’x at 32.

Upon transporting Lopez-Hernandez and Lopez-Lopez to the border patrol station, agents found

$2,108 on Lopez-Hernandez’s person.         After waiving his Miranda rights, Lopez-Hernandez


                                                  4
stated that the money was his life savings, that the car seen near the border was his, and that he

had driven his car to Burlington, Vermont, at which point Lopez-Lopez had taken over driving.

Agents also conducted a search of Lopez-Lopez’s cell phone, which revealed text messages

between and among Lopez-Lopez, Lopez-Hernandez, and the five other undocumented

individuals; several of these text messages indicated, in substance, that Lopez-Hernandez expected

to be paid for smuggling aliens into the United States.

       After the government had provided its factual recitation of the evidence at the plea hearing,

the court asked Lopez-Hernandez whether the evidence accurately reflected “what [he] did and

what occurred in this case.”    App’x at 35.    Lopez-Hernandez, through his interpreter, replied,

“What I hear from the U.S. Attorney is true, your Honor.     What I want to clarify is that I wasn’t

involved directly a hundred percent from crossing people from Canada into the United States.

What I was involved is being with these people who offered me to get some payment to transport

these people inside the United States.”

a long discussion among all

parties about whether Lopez-Hernandez understood that, by pleading guilty, he was knowingly

admitting to the crimes of alien smuggling and conspiracy to commit alien smuggling, which

involve “bring[ing] or attempt[ing] to bring [aliens] to the United States,” as opposed to the crime

of “transporting aliens,” a separate provision of 8 U.S.C. § 1324.           Compare 8 U.S.C. §

1324(a)(1)(A)(i) (punishing one who “brings to or attempt to bring [an alien] to the United States”),

with

one who knowing “transports, or moves, or attempts to

transport or move [an] alien within the United States”).

       All parties agreed that Lopez-Hernandez was not involved in physically bringing the five

undocumented Romanians across the Canadian border and that he had picked them up in New

York, a quarter-mile from the border. Lopez-Hernandez’s counsel clarified to the court that in


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charging Lopez-Hernandez with alien smuggling, as opposed to transporting, the government

relied on this Court’s decision in United States v. Aslam, 

(2d Cir. 1991). 2   Counsel

continued that he had “explained this to [Lopez-Hernandez] and told him that if he pled guilty,”

he would likely waive any challenge to Aslam on appeal, but that Lopez-Hernandez “wants to

accept responsibility for what he did and [if] what he did equals bringing, under the law of the

Circuit, then he’s guilty of it.”   App’x at 36.

        Lopez-Hernandez now argues that there was an inadequate factual basis for his plea

because he was “440 yards away from the border” when he picked up the five Romanian citizens,



        2
           In Aslam, Border Patrol agents arrested defendant Rafique Aslam after “[r]esponding to
an alert from [a sensor] device” installed at the border, and observing Aslam make a U-turn in
his car “a few yards south of the Canadian border” “at the same time [the agents] saw two men
walking south along the 

. These two men had illegally crossed the
Canadian border with a guide shortly before Aslam intended to greet them.

rejected the district court’s view that while Aslam’s conduct could support a conviction for
“transport[ing]” undocumented individuals “within the United States knowing of their illegal
entry,” Aslam “was not a person who ‘brings to or attempts to bring to the United States’ . . . an
illegal alien because his conduct did not ‘assist[] in the physical ingress [of the aliens] into the
United States.’”

(alterations in original) (internal citation omitted). We instead
agreed with the Government that the relevant statutory language “punishes those who participate
in the process of bringing illegal aliens into the United States, and that the offense does not end
at the instant the alien sets foot across the border.”

        Lopez-Hernandez asks that we revisit this holding, citing as reason an en banc decision in
the Ninth Circuit that held that the “brings to” offense under 8 U.S.C. § 1324 “clearly connotes
the act of bringing the alien ‘from outside’ the country,” and “terminates when the initial
transporter who brings the alien to the United States drops off the alien at a location in this
country.” United States v. Lopez, 

, 1195, 1201 (9th Cir. 2007). But “a panel of
[this] Court is ‘bound by the decisions of prior panels until such time as they are overruled either
by an en banc panel of [this] Court or by the Supreme Court,” United States v. Smith, 

, 65 (2d Cir. 2020) (quoting United States v. Wilkerson, 

, 732 (2d Cir. 2004)).
Moreover, having concluded that there was a valid and unconditional guilty plea for the reasons
set forth herein, we also conclude that Lopez-Hernandez “has waived his right to raise any
nonjurisdictional issues.” United States v. Mladen, 

, 162 (2d Cir. 2020); see also

(“[E]ven a defendant’s . . . argument that the conduct set out in the
indictment does not make out a violation of the charged statute does not implicate subject-matter
jurisdiction.” (quoting United States v. Yousef, 

, 260 (2d Cir. 2014))).

                                                   6
as opposed to a “few yards” as in Aslam.      He also argues that while Aslam attempted to pick up

two undocumented individuals shortly after they walked across the border, his plea allocution

contains no information as to how, where, or when the five undocumented individuals crossed the

border prior to meeting Lopez-Lopez and Lopez-Hernandez.

       We need not determine the temporal or geographic limits of a “bringing in” offense,

however, to conclude that the district court did not commit plain error in finding a sufficient factual

basis for Lopez-Hernandez’s guilty plea to each count here.         This Court has stated that “the

‘transporting’ felony might overlap to some extent” with the crime of “bringing in,” while

declining to determine the precise geographic or temporal scope of the “bringing in” offense.

. It was thus certainly not plain error, “subject to [no] reasonable dispute,”

(quoting 

), for the district court to find a quarter-

mile sufficiently close to the border to consider Lopez-Hernandez’s conduct in assisting the

individuals here to be part of the “process of bringing illegal aliens into the United States.”

.      The stated evidence that the government had initially responded to

activity around 3:00 A.M. near the border, moreover, and then subsequently observed a vehicle

drive north, hearing minutes later “what sounded like car doors slamming,” was sufficient for the

court to determine that, as in Aslam, Lopez-Hernandez and Lopez-Lopez had picked up the five

undocumented individuals a short period after they had illegally crossed the border.

       II.     Understanding the Nature of the Charges

       Lopez-Hernandez next argues that the district court failed to fulfill Rule 11(b)(1)(G)’s

requirement to “inform the defendant of, and determine that the defendant understands . . . the

nature of each charge to which [he] is pleading,” Fed. R. Crim. P. 11(b)(1)(G);       see also United

States v. Pattee, 

, 507 (2d Cir. 2016) (“Rule 11 . . . constitutes a required minimum


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in assuring that a defendant understands the nature of the charges”).    Again, we disagree.     While

the district court’s effort to explain the charges in light of Lopez-Hernandez’s statement that he

“wasn’t involved directly a hundred percent from crossing people from Canada into the United

States,” was, at points, confusing, Lopez-Hernandez has not demonstrated plain error because he

has not established a reasonable probability that, but for the error, he would not have pled guilty.

.    Accordingly, this claim also fails.

        At the start, defense counsel explained, and the government confirmed, that pursuant to

Aslam, the government’s position was that a defendant need not himself bring an alien across the

border in order to be guilty of alien smuggling and conspiracy charges.              App’x at 35–36.

Defense counsel emphasized that he had thoroughly explained this to his client, and that he had

met Lopez-Hernandez and an interpreter some ten times prior to the hearing.         See, e.g.

in this country have found that transporting is not bringing, but the law in this Circuit

as today is this type of transportation is bringing.   I’ve explained this to my client and told him

that if he pled guilty, he would likely waive this issue for appeal, could revisit it, but he wants to

accept responsibility for what he did and what he did equals bringing, under the law of the Circuit,

then he’s guilty of it.”);

(“I believe his position, your Honor, is that we have talked at

length about this issue, about the word ‘bringing’ and about how other Circuits disagree with the

Circuit but unfortunately he is in this Circuit.   He just wants to make it clear to the Court that he

did not bring, as English language says, these people into the United States but he understands

fully that the reason he’s pleading guilty is because the law in this Circuit makes the activity he

engaged in equals bringing. . . . And that’s why he wants to plead guilty.”).

        Despite defense counsel’s repeated assertions that his client understood the law and why

he was pleading guilty, the district court expressed some uncertainty about whether Lopez-


                                                   8
Hernandez actually understood the nature of the charge.     See App’x at 36 (“It does [make sense

to me].     I want to make sure that it makes sense to your client because he ended up qualifying

after I asked him if that’s what he did.”);

(“I think I understand that and you [(defense

counsel)] understand it. I just don’t know by your client’s answers if he understands it and if he

–if he doesn’t want to take responsibility for that, which the government is requiring that he take

responsibility for, then, I mean, perhaps he should have a trial.”).     But the court’s efforts to

ascertain Lopez-Hernandez’s understanding arguably fell somewhat short.        Thus, the court asked

Lopez-Hernandez: “I understand, Mr. Lopez-Hernandez, that you did not pick up the aliens . . . in

Canada and drive them over the border but do you fully understand that you’re pleading guilty to

a crime that is taking these aliens and transporting them?”

–38. 
    But Lopez-Hernandez

was not pleading to “a crime that is taking these aliens and transporting,” which is a separate crime

under 8 U.S.C. § 1324, but to the crime of taking these aliens and bringing them to the United

States, which, under our holding in Aslam, does not necessarily require that the defendant himself

bring the aliens across a border.   See 
Aslam, 936 F.2d at 755
.

          On plain error review, however, it is not enough that Lopez-Hernandez demonstrate that

the district court’s explanation of the charges was at points unclear. “In order to establish that a

Rule 11 violation affected ‘substantial rights,’ the defendant must show ‘that there is a reasonable

probability that, but for the error, he would not have entered the plea.’” 
Pattee, 820 F.3d at 505
(quoting United States v. Vaval, 
404 F.3d 144
, 151 (2d Cir. 2005)).      “If ‘the misinformation in

all likelihood would not have affected a defendant’s decision-making calculus, then the error

would be harmless, and the guilty plea need not be vacated.’”
         Id. (quoting United States 
v.

Harrington, 
354 F.3d 178
, 184 (2d Cir. 2004)); see also United States v. Dominguez Benitez, 
542

U.S. 74
, 76 (2004).


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        Here, Lopez-Hernandez does not even address whether there is a reasonable probability

that he would have declined to plead guilty had the court not erred (assuming it did err) in

explaining the nature of the charges against him. The plea hearing itself, moreover, makes clear

that there is no probability of a difference in outcome.            The record reflects that Lopez-

Hernandez’s counsel explained to his client the nature of the charges prior to the plea hearing, and

that Lopez-Hernandez knowingly decided to admit guilt. Defense counsel accurately affirmed

on the record at the plea hearing that “[t]he government’s position is that the act of transporting

into the United States near the border equals bringing. They rely upon a 1991 case in this Circuit

called Aslam . . . . [T]he law in this Circuit as [of] today is this type of transportation is bringing.”

App’x at 35–36.     And counsel was crystal clear that he had “explained this to my client and told

him that if he pled guilty, he would likely waive this issue for appeal, could revisit it, but he wants

to accept responsibility for what he did and [if] what he did equals bringing, under the law of the

Circuit, then he’s guilty of it.”
 Id. at 36. 
  Counsel later in the hearing reaffirmed that “[Lopez-

Hernandez] transferred them once they crossed but it’s I believe the U.S. Attorney’s position and

the Circuit’s position that equals bringing. . . .    And I advised my client of that and advised him

that if he wanted the Circuit to revisit this issue, he should have a trial. He doesn’t want to do

that.   He wants to admit what he did to you.”
 Id. at 37 
(emphasis added).           Finally, when the

district court asked defense counsel whether Lopez-Hernandez was pleading guilty knowingly,

counsel replied, “Yes, your Honor.      He understands what he did and he understands what the law

is more than most of us, and he didn’t bring, as far as the English language and Spanish language

goes, but he brought, according to the Second Circuit, and this is his desire to admit what he did

to the Court and take responsibility and that’s why he’s here.”
 Id. at 40.




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       The plea hearing thus establishes that defense counsel provided his client with a reasonable

explanation of Aslam and informed his client that he could go to trial and ask the court to revisit

Aslam, but by pleading guilty he would likely be waiving that issue on appeal.     Lopez-Hernandez

told his counsel that he did not want to have a trial and has not provided any argument on appeal

that he would have decided otherwise absent the court’s statements during the plea hearing.       See

United States v. Lloyd, 
901 F.3d 111
, 115 (2d Cir. 2018) (stating that the district court’s failure to

“articulate the elements of the crime to which [the defendant] was pleading guilty” was a

“significant failure” but “nevertheless reject[ing defendant]’s challenge because he has pointed to

nothing in the record suggesting that, had the District Court satisfied this element of Rule 11, he

would not have pleaded guilty”); United States v. Caraballo-Rodriguez, 
480 F.3d 62
, 76–77 (1st

Cir. 2007) (“[E]ven if the district court had erred in its understanding of misprision law, there is

nothing in the record to suggest that the defendant would have been willing to risk trial on the

conspiracy charges in the absence of the error.           [Defendant]’s substantial rights were not

affected.”) (internal citation omitted)).       Defendant-Appellant has thus not met his burden of

demonstrating that absent the misstatements at the plea hearing, he would not have pled guilty or

been willing to risk trial on the charges against him.

                                            *        *     *

       We have considered Defendant-Appellant’s remaining arguments and find them to be

without merit.   Accordingly, we AFFIRM the judgment of the district court.

                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




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