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.
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:
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:
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.
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 prejudice, granted Alvarado-Casas leave to file an "out-of-time" direct appeal, and appointed counsel for that purpose.
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.
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, 122 S.Ct. 1043, 152 L.Ed.2d 90 (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
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. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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 of the alien trafficking operation, caused the serious bodily injury to, and placed in jeopardy the lives of, the aliens involved.
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, 124 S.Ct. 2333, 159 L.Ed.2d 157 (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 of the statute in light of the common law, or binding judicial construction of the statute")
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. 950-51. 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 Fed.Appx. 397, 400-01 (5th Cir.2006) (per curiam) (affirming guilty plea conviction for aggravated alien transporting, on plain error 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.
Because neither the plain language of the statute nor our interpretation of it
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 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.
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. 951-53.
The district court misadvised Alvarado-Casas that he faced a maximum of
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 Fed.Appx. 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 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
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.
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 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.
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: "The defendant waives the right to appeal the sentence imposed or the manner in which it was determined.
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.