Case: 10-30425 Document: 00511393848 Page: 1 Date Filed: 02/25/2011




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

                                                 FILED
                                                                          February 25, 2011
                                     No. 10-30425
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

ALBERTO GALLEGOS-VELAZQUEZ,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 2:09-CR-288-1


Before KING, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
       Alberto Gallegos-Velazquez was indicted for assault resulting in serious
bodily injury within the territorial jurisdiction of the United States, the Federal
Correctional Institution (FCI) in Oakdale, Louisiana, in violation of 18 U.S.C.
§ 113(a)(6). Gallegos-Velazquez pleaded guilty in accordance with the written
plea agreement and stipulated factual basis. Gallegos-Velazquez submitted a
sentencing memorandum requesting that the district court consider that he
acted in self-defense when imposing sentence. Gallegos-Velazquez specifically

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                   No. 10-30425

stated that, “[h]e had the option of going to trial and utilizing self-defense as his
defense” but instead chose to plead guilty. Gallegos-Velazquez did not move to
withdraw his plea.     The district court sentenced Gallegos-Velazquez to 51
months in prison.
      On appeal, Gallegos-Velazquez argues that the district court erred in
accepting his guilty plea because he did not understand the nature of the offense
of conviction, specifically that the district court did not inform him of the
potential affirmative defense of self-defense in violation of Federal Rule of
Criminal Procedure 11(b)(1)(G). He made no objection during the plea colloquy
and, contrary to his argument, failed to preserve error. See United States v.
Rodriguez, 

, 414 (5th Cir. 1994). Our review is for plain error. See
United States v. Vonn, 

, 59 (2002).
      A district court is required by Rule 11 to address the defendant and inform
him of the nature of the charges. F ED. R. C RIM. P. 11(b)(1)(G). “[A] defendant
who seeks reversal of his conviction after a guilty plea, on the ground that the
district court committed plain error under Rule 11, must show a reasonable
probability that, but for the error, he would not have entered the plea.” United
States v. Dominguez Benitez, 

, 83 (2004).          Gallegos-Velazquez’s
sentencing memorandum and failure to move to withdraw his guilty plea
demonstrate that Gallegos-Velazquez was sufficiently informed of the nature of
his offense such that any variance from Rule 11 could not reasonably be viewed
as affecting his decision to plead guilty. See United States v. Smith, 

, 417 (5th Cir. 1999).         Moreover, Gallegos-Velazquez has failed to
demonstrate that, but for the alleged error, he would not have entered his guilty
plea. See Dominguez 

.
      Gallegos-Velazquez argues that the factual basis was insufficient to
support his plea because the admitted behavior showed that he was acting out
of self-defense. In evaluating the factual basis for a guilty plea, the district court
must “compare (1) the conduct to which the defendant admits with (2) the

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                                    No. 10-30425

elements of the offense charged in the indictment or information” to ensure that
the defendant understands not only the nature of the charge but also that his
conduct falls within the charge. United States v. Marek, 

, 315 (5th
Cir. 2001) (en banc) (citation omitted). Inferences may be “fairly drawn” from
the “evidence adduced after the acceptance of a guilty plea, but before or at
sentencing.” United States v. Dyer, 

, 424 n.13 (5th Cir. 1998).
        Generally, this court reviews for clear error the district court’s acceptance
of a guilty plea as a factual finding. United States v. Reasor, 

, 470
(5th Cir. 2005). In the instant case, Gallegos-Velazquez did not raise a challenge
to the adequacy of the factual basis in the district court. Review is for plain
error. See United States v. Castro-Trevino, 

, 541 (5th Cir. 2006).
        Gallegos-Vellazquez concedes that at the time the plea was taken, the
district court had no reason to question the adequacy of the factual basis for the
plea.    He also stated in his sentencing memorandum that he specifically
considered and rejected pursuing self-defense as his defense to the charged
offense. These undisputed facts show that Gallegos-Velazquez knew that his
admitted conduct fell within the charged offense. 

.
Gallegos-Vellazquez has not shown that the district court erred plainly or
otherwise in finding a sufficient factual basis for the guilty plea.
        AFFIRMED.




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