Filed: Sep. 11, 2020
Latest Update: Sep. 11, 2020
Summary: Case: 19-40668 Document: 00515560728 Page: 1 Date Filed: 09/11/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 11, 2020 No. 19-40668 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Alfredo Avalos-Sanchez, also known as Chore, also known as Jose, Defendant—Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 7:17-CR-588 Before Davis, Jones, and Willett, Ci
Summary: Case: 19-40668 Document: 00515560728 Page: 1 Date Filed: 09/11/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 11, 2020 No. 19-40668 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Alfredo Avalos-Sanchez, also known as Chore, also known as Jose, Defendant—Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 7:17-CR-588 Before Davis, Jones, and Willett, Cir..
More
Case: 19-40668 Document: 00515560728 Page: 1 Date Filed: 09/11/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
September 11, 2020
No. 19-40668 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Alfredo Avalos-Sanchez, also known as Chore, also known as
Jose,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:17-CR-588
Before Davis, Jones, and Willett, Circuit Judges.
Don R. Willett, Circuit Judge:
Alfredo Avalos-Sanchez served as lookout during an armed home
invasion gone awry. The plan was to steal drugs and money from a known
drug dealer. But Avalos-Sanchez and his crew invaded the wrong house.
Instead of hightailing it, as some might have done, 1 they robbed the four non-
1
See Jenna Laine, Bad House Call: Buccaneers’ Tom Brady Mistakenly Enters Wrong
Home, ESPN (Apr. 23, 2020), https://www.espn.com/nfl/story/_/id/29086979/buccan
Case: 19-40668 Document: 00515560728 Page: 2 Date Filed: 09/11/2020
No. 19-40668
drug-dealing occupants anyway. Avalos-Sanchez pleaded guilty to, and was
convicted of, interference with interstate commerce by robbery, in violation
of the Hobbs Act, 18 U.S.C. § 1951(a). The district court sentenced Avalos-
Sanchez to 87 months in prison.
Avalos-Sanchez challenges his guilty-plea conviction and sentence on
two grounds: (1) that the factual basis for his guilty plea was insufficient, in
violation of Federal Rule of Criminal Procedure 11, because the Government
failed to establish the commerce element of the Hobbs Act robbery charge;
and (2) that his guilty plea was not knowing and voluntary, in violation of the
Due Process Clause of the Fifth Amendment, because he did not know the
factual basis for his guilty plea was insufficient. Neither argument has merit,
and we affirm.
I
In June 2017, Avalos-Sanchez and several others attempted to rob a
McAllen, Texas residence. Avalos-Sanchez and his crew “believed that
hundreds of pounds of marijuana and/or over five kilograms of cocaine were
being stored at the private residence,” and they intended to obtain by force,
and then distribute, those controlled substances. The plan was
straightforward: Some of the crew would enter the home to steal the
controlled substances at gunpoint, while Avalos-Sanchez and others would
watch for law enforcement. But the June 6 robbery went sideways; the crew
had hit the wrong house. Instead of fleeing, the robbers held the four
occupants at gunpoint and stole $700 cash and two cell phones.
eers-tom-brady-mistakenly-enters-wrong-home (“Brady immediately apologized before
darting out the door.”).
2
Case: 19-40668 Document: 00515560728 Page: 3 Date Filed: 09/11/2020
No. 19-40668
The next day, some of the crew—not including Avalos-Sanchez—ran
the same play and tried to rob the correct residence. The crew never made it
to the front door. They encountered law enforcement on their way.
A grand jury issued a four-count indictment against Avalos-Sanchez
and several other defendants involved in the June 6 robbery and the June 7
attempted robbery. Count Three of the indictment charged Avalos-Sanchez
with violating the Hobbs Act:
On or about April 24, 2017 through June 7, 2017, . . . [Avalos-
Sanchez] did unlawfully obstruct, delay, and affect commerce
and the movement of articles and commodities in commerce by
robbery and attempt to obstruct, delay, and affect commerce
and the movement of articles and commodities in commerce by
robbery, as the terms robbery and commerce are defined in
Title 18, United States Code, Section 1951(b), in that the
defendants did unlawfully take and attempted to take
controlled substances and drug proceeds from individuals
against their will by means of actual or threatened force,
violence, or fear of immediate or future injury. 2
Avalos-Sanchez pleaded guilty to Count Three and entered a written
plea agreement with the Government. At his re-arraignment, Avalos-
Sanchez admitted that he had conspired with other defendants with the
intent to steal and sell controlled substances. Avalos-Sanchez also admitted
that he was involved in the June 6 robbery and that, even though no drugs
were stolen, the intent had been to enter the residence and steal drugs
believed to be there. Avalos-Sanchez admitted that he and his crew believed
that hundreds of pounds of marijuana or five-plus kilograms of cocaine were
stored at the targeted residence. Avalos-Sanchez denied that he attended or
knew the plan for the June 7 attempted robbery. But he did not refute the
2
Avalos-Sanchez was charged with violating 18 U.S.C. § 1951(a) and 18 U.S.C. § 2.
3
Case: 19-40668 Document: 00515560728 Page: 4 Date Filed: 09/11/2020
No. 19-40668
Government’s statement that a June 7 telephone call among many of the crew
alerted Avalos-Sanchez and others to the planned robbery that day.
The district court sentenced Avalos-Sanchez to 87 months in prison.
Avalos-Sanchez timely appealed, challenging his guilty-plea conviction and
sentence. 3
II
Because Avalos-Sanchez did not challenge the adequacy of the factual
basis for his guilty plea in district court, we review for plain error. 4 And the
plain-error bar, while not insurmountable, is high. Avalos-Sanchez must
show “(1) there is an error, (2) that is clear and obvious, and (3) that affects
his substantial rights.” 5 Even when all three requirements are met, we have
discretion to correct the error and will do so only if “the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” 6
III
Avalos-Sanchez raises two issues on appeal. First, he contends that
the factual basis supporting his guilty plea is insufficient as a matter of law
because it does not establish an effect on interstate commerce, an element of
a Hobbs Act robbery. Second, he argues that his guilty plea was not voluntary
and knowing because he did not know that the factual basis for his guilty plea
was insufficient. We address, and reject, each in turn.
3
We have jurisdiction for this appeal. See 28 U.S.C. § 1291; 18 U.S.C. § 3742(a).
4
United States v. Walker, 828 F.3d 352, 354 (5th Cir. 2016); United States v. Marek,
238 F.3d 310, 315 (5th Cir. 2001) (en banc) (citations omitted).
5
Marek, 238 F.3d at 315 (citation omitted).
6
Id.
4
Case: 19-40668 Document: 00515560728 Page: 5 Date Filed: 09/11/2020
No. 19-40668
A
Before accepting a guilty plea, a district court must first determine
there is a factual basis for the plea. 7 This factual basis must be in the record
and “sufficiently specific.” 8 To analyze the sufficiency of the factual basis
under plain-error review, we must first determine if the district court erred
in accepting Avalos-Sanchez’s guilty plea. To do so, we compare the
elements of the crime for which Avalos-Sanchez was convicted to the
conduct he admitted in the factual basis. 9
First, we consider the elements of the crime. A Hobbs Act violation 10
has two elements: (1) robbery, extortion, or an attempt or conspiracy to rob
or extort (2) that affects commerce. 11 Avalos-Sanchez only challenges the
commerce element. 12 The Hobbs Act’s language is “unmistakably broad,”
however, and the scope of its commerce element is no exception: The Act
“reaches any obstruction, delay, or other effect on commerce, even if small,”
7
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.”).
8
United States v. Broussard, 669 F.3d 537, 546 (5th Cir. 2012) (internal quotation
marks and citation omitted).
9
Marek, 238 F.3d at 315.
10
18 U.S.C. § 1951(a).
11
United States v. Robinson, 119 F.3d 1205, 1212 (5th Cir. 1997).
12
Avalos-Sanchez was charged with, and pleaded guilty to, committing or
attempting to commit a robbery, but his counsel states, “It is noteworthy that Mr. Avalos
was not charged with and did not plead guilty to any conspiracy crime.” Of note, the
Government also seems to suggest that Avalos-Sanchez was convicted for aiding and
abetting a Hobbs Act robbery. But because Avalos-Sanchez does not challenge his
conviction and sentence based on the first element of a Hobbs Act violation, we need not
address that issue.
5
Case: 19-40668 Document: 00515560728 Page: 6 Date Filed: 09/11/2020
No. 19-40668
and defines “commerce” to its constitutional limit. 13 For the Government to
satisfy the Act’s commerce element, then, “it is enough that a defendant
knowingly stole or attempted to steal drugs or drug proceeds.” 14
Next, we consider the conduct Avalos-Sanchez admitted in the factual
basis. At the re-arraignment hearing, the Government orally presented the
factual basis for Avalos-Sanchez’s guilty plea. Avalos-Sanchez admitted he
knew of the unlawful purpose of the conspiracy to rob the home for controlled
substances and joined in it willingly. He also admitted involvement in the
June 6 robbery. And, importantly, he admitted that he intended to steal
drugs—the hundreds of pounds of marijuana or five-plus kilograms of
cocaine believed to have been there. Based on Avalos-Sanchez’s admissions,
the Government satisfied the Hobbs Act’s commerce element, and there was
a sufficient factual basis to accept Avalos-Sanchez’s guilty plea.
Avalos-Sanchez and the Government debate the scope of the record
that we may review when determining the factual-basis sufficiency of his
guilty plea. Avalos-Sanchez argues that it should be limited to the facts
admitted by him during his re-arraignment because the district court did not
reference other sources when determining whether there was a sufficient
factual basis for his guilty plea. The Government counters that, in addition
to the re-arraignment hearing, we may also review the plea agreement, Pre-
Sentence Report, indictment, and reasonably drawn inferences from the
facts. 15 The Government gets it right: When we examine factual-basis
13
Taylor v. United States,
136 S. Ct. 2074, 2079 (2016). See 28 U.S.C. § 1951(b)(3)
(defining commerce as “all . . . commerce over which the United States has jurisdiction”).
14
Taylor, 136 S. Ct. at 2081.
15
The Government cites incidents that took place before the April 24–June 7, 2017
timeframe for which Avalos-Sanchez was indicted. In addition to the June 6 and 7 incidents,
the PSR references a March 12, 2017 carjacking committed with the purpose of stealing
controlled substances (Avalos-Sanchez was the lookout) and an April 6, 2017 double
6
Case: 19-40668 Document: 00515560728 Page: 7 Date Filed: 09/11/2020
No. 19-40668
sufficiency under plain-error review, “we may look beyond those facts
admitted by the defendant during the plea colloquy and scan the entire record
for facts supporting his conviction.” 16 What the district court relied on in
accepting Avalos-Sanchez’s guilty plea is relevant but does not limit the
scope of our plain-error review. The entire record unmistakably
demonstrates that Avalos-Sanchez participated in the June 6 robbery with the
intent to obtain controlled substances.
But our determination of factual-basis sufficiency need not comb the
entire record. Avalos-Sanchez’s admissions at re-arraignment, standing
alone, support his conviction under the Hobbs Act in light of the Supreme
Court’s decision in Taylor v. United States. There, the defendant was charged
with two Hobbs Act violations for robbing drug dealers’ homes, although
neither drugs nor proceeds from drug sales were stolen. 17 Even though the
defendant procured no drugs or drug money, the Supreme Court held that
the prosecution met its burden by introducing evidence that Taylor’s gang
intentionally targeted drug dealers to obtain drugs and drug proceeds. 18
When “robberies were committed with the express intent to obtain illegal
carjacking where Avalos-Sanchez and others robbed two individuals and stole 14 kilograms
of cocaine.
16
Broussard, 669 F.3d at 546 (quoting United States v. Trejo,
610 F.3d 308, 313 (5th
Cir. 2010)).
17
In the first attempted drug robbery, Taylor failed to locate drugs at the drug
dealer’s home but took jewelry, $40 cash, two cell phones, and a marijuana cigarette.
Taylor, 136 S. Ct. at 2078. In the second attempt, he broke into another drug dealer’s home
but did not find any drugs, taking instead a cell phone.
Id.
18
The Government introduced evidence that one intended robbery victim had
been robbed of drugs at his home in the past and the second was believed to possess
marijuana.
Id. at 2081. And the robbers made explicit statements in the course of the
robberies revealing they believed the intended victims possessed drugs and drug proceeds.
Id.
7
Case: 19-40668 Document: 00515560728 Page: 8 Date Filed: 09/11/2020
No. 19-40668
drugs and the proceeds from the sale of illegal drugs,” this “is sufficient to
meet the commerce element of the Hobbs Act.” 19
Like the defendant in Taylor, Avalos-Sanchez did not obtain drugs or
drug proceeds from the June 6 home robbery. More importantly, like the
defendant in Taylor, Avalos-Sanchez expressly intended to obtain illegal drugs
and proceeds from drugs from the June 6 robbery. For purposes of the Hobbs
Act’s commerce element, it does not matter whether Avalos-Sanchez’s
robbery in fact affected interstate commerce. 20 The prosecution need only
show that Avalos-Sanchez committed a robbery with the intent to obtain
controlled substances, which it did when Avalos-Sanchez admitted exactly
that in his re-arraignment hearing.
Avalos-Sanchez argues that Taylor is distinguishable because there is
no evidence that the actual June 6 robbery victims, as opposed to the intended
victims, were drug dealers or that any drugs or drug proceeds were stolen.
But the evidence is uncontroverted that Avalos-Sanchez intended to target
the home of a drug dealer—where he and his crew believed they would find
hundreds of pounds of marijuana or five-plus kilograms of cocaine. Avalos-
Sanchez and his crew simply hit the wrong house. Targeting the home of a
drug dealer, not actually invading the home of a drug dealer, is what matters
under Taylor.
Avalos-Sanchez also contends that Taylor is distinguishable because
he pleaded guilty to an actual robbery, not an attempted robbery. But, as the
Taylor Court noted, “to satisfy the Act’s commerce element, it is enough
19
Id. at 2081–82 (emphasis added).
20
In dissent in Taylor, Justice Thomas would construe the Hobbs Act so that “the
Act punishes a robbery only when the Government proves that the robbery itself affects
interstate commerce.” Taylor, 136 S. Ct. at 2082 (Thomas, J., dissenting).
8
Case: 19-40668 Document: 00515560728 Page: 9 Date Filed: 09/11/2020
No. 19-40668
that a defendant knowingly stole or attempted to steal drugs or drug
proceeds.” 21 The defendant in Taylor was convicted for Hobbs Act robberies,
and it was his knowing, albeit unsuccessful, attempt to steal drugs that
satisfied the Hobbs Act’s commerce element. Because Avalos-Sanchez had
the requisite intent to steal controlled substances during the June 6 robbery,
the Government satisfied the commerce element of the Hobbs Act, and the
district court had a sufficient factual basis for accepting his guilty plea.
Avalos-Sanchez also argues that his involvement in the June 6 robbery
fails to satisfy the Hobbs Act’s commerce element because the actual victims
of the robbery—individuals not involved in the drug trade—were not in a
business engaged in or affecting interstate commerce. He relies on our
decisions in United States v. Collins 22 and United States v. Johnson 23 for the
argument that, when individuals rather than businesses are the victims of
Hobbs Act robberies, courts are more reluctant to find that the Government
has satisfied the commerce element. 24 But his reliance is misplaced: Neither
case involved Hobbs Act robberies (or attempted robberies) of drugs. 25 Plus,
21
Id. at 2081. See also United States v. Milsten, 814 F. App’x 244, 246 (9th Cir.
2020) (unpublished) (“Whether [defendant] was charged with an attempted crime or
not,” defendant’s “attempt to rob a drug dealer satisfies the ‘affecting commerce’ element
of the Hobbs Act.”) (citing
Taylor, 136 S. Ct. at 2078).
22
40 F.3d 95 (5th Cir. 1994).
23
194 F.3d 657 (5th Cir. 1999).
24
Avalos-Sanchez also relies on Second Circuit caselaw concluding that, in cases
involving individual victims, the commerce element of a Hobbs Act robbery is met only
under limited circumstances. See United States v. Rose, 891 F.3d 82, 86 (2d Cir. 2018). But
these circumstances do not apply to this case; moreover, we are not bound by the caselaw
of our sister circuits.
25
In Collins, the defendant was charged under 18 U.S.C. § 1951(a) and 18 U.S.C.
§ 924(c)(1) for robbing a Denny’s restaurant employee at gunpoint, robbing another
individual at gunpoint, and absconding with cash, jewelry, clothes, and that individual’s
9
Case: 19-40668 Document: 00515560728 Page: 10 Date Filed: 09/11/2020
No. 19-40668
the Supreme Court’s decision in Taylor forecloses Avalos-Sanchez’s
arguments. While no drugs were stolen in the June 6 robbery—just cash and
cell phones—Avalos-Sanchez’s intent to target a drug dealer’s home to steal
drugs, not his success, matters for purposes of satisfying the Hobbs Act’s
commerce element. 26
Because the district court had a sufficient factual basis for accepting
the guilty plea, the district court committed no error, plain or otherwise, and
we affirm. 27
B
Avalos-Sanchez next challenges the validity of his guilty plea. This too
we review for plain error since Avalos-Sanchez failed to raise this issue in the
district court. 28
“Because a guilty plea involves the waiver of constitutional rights, it
must be voluntary, knowing, and intelligent” to be valid. 29 To enter a valid
guilty plea, the “defendant must have full knowledge of what the plea
connoted and of its consequences.” 30 Avalos-Sanchez argues that his guilty
plea was not valid because, had he known of the alleged factual-basis
Mercedes-Benz. 40 F.3d at 98. In Johnson, the defendant was charged under a different
statute entirely, 18 U.S.C. §
844(i). 194 F.3d at 658.
26
Taylor, 136 S. Ct. at 2081–82.
27
Even assuming that there was error, Avalos-Sanchez has failed to show that the
other requirements for plain error are present. “It goes without saying that meeting all
[plain-error] requirements is difficult as it should be.” Trejo, 610 F.3d at 319 (internal
quotation marks and citation omitted).
28
United States v. Vonn, 535 U.S. 55, 59 (2002).
29
United States v. Lord, 915 F.3d 1009, 1016 (5th Cir. 2019) (citing Brady v. United
States,
397 U.S. 742, 748 (1970)).
30
Id. (citing Boykin v. Alabama,
395 U.S. 238, 244 (1969)).
10
Case: 19-40668 Document: 00515560728 Page: 11 Date Filed: 09/11/2020
No. 19-40668
insufficiency regarding the Hobbs Act’s commerce element, he would not
have pleaded guilty.
Avalos-Sanchez predicates the validity of his guilty plea on his first
challenge: the basis for his guilty plea. But as discussed above, there is no
question that there was a sufficient factual basis for the commerce element.
And the colloquy between the court and Avalos-Sanchez at his re-
arraignment shows that Avalos-Sanchez had full knowledge of what his guilty
plea connoted and of its consequences: The district court explained the
maximum punishment, the elements of the Hobbs Act charge, the evidence
proving a violation of the Hobbs Act, Avalos-Sanchez’s trial rights, and the
consequences of a guilty plea. And the district court questioned Avalos-
Sanchez as to each of these. Here too, there is no error, much less plain error.
* * *
For all these reasons, we AFFIRM.
11
