     Case: 18-40857      Document: 00515221617         Page: 1    Date Filed: 12/03/2019




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

                                                                              FILED
                                      No. 18-40857                    December 3, 2019
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk


              Plaintiff - Appellee

v.

MIGUEL ARELLANO,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:17-CR-38-2


Before KING, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
       Miguel Arellano was convicted at trial of conspiring to possess five or
more kilograms of cocaine with intent to distribute, and he was sentenced to
188 months’ imprisonment. He now appeals various aspects of his conviction
and sentence, none of which he objected to before the district court. Because he
has not sufficiently demonstrated error, we affirm the district court’s
judgment.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-40857
                                            I.
       The defendant in this case, Miguel Arellano, was arrested after
delivering nearly five kilograms of cocaine to an undercover police officer. In
the car with him when he delivered the drugs was a duffel bag containing some
articles of clothing, other personal effects, and a closed pouch containing an
unloaded handgun and two magazines of ammunition.
       Arellano was indicted by a grand jury for conspiracy to possess five
kilograms of cocaine with intent to distribute, in violation of 21 U.S.C. § 846,
and he entered into plea negotiations with the government. An agreement was
evidently reached, and the government then charged Arellano via information
with conspiracy to possess five hundred grams of cocaine, a crime with a lesser
mandatory minimum sentence, see 21 U.S.C. § 841(b)(1).
       At a hearing before the magistrate judge, the elements of the charge were
read aloud, and Arellano admitted to committing each of them. 1 The prosecutor
then read the factual basis for the charge, which included that “Arellano knew
that the amounts involved during the term of the conspiracy involved at least
3.5 kilograms but less than 5 kilograms[2] of a mixture or substance containing
a detectable amount of cocaine” and that “Arellano’s role in the conspiracy was
to supply co-conspirators with kilogram quantities of cocaine from various
sources.” Arellano agreed that everything that the prosecutor had recited was
accurate.




       1 One of those elements was “that the defendant knew or reasonably should have
known that the scope of the conspiracy involved 500 grams or more of a mixture or substance
containing a detectable amount of cocaine.”
       2 Although the same statutory minimum sentence applies for offenses involving

anywhere between five hundred grams and five kilograms of cocaine, see § 841(b)(1), the
sentencing guidelines operate on a more granular level, see U.S. Sentencing Guidelines
Manual § 2D1.1(c).
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                                     No. 18-40857
       The magistrate judge then asked Arellano to describe, in his own words,
what he had done that violated the law. Arellano stated, “I was asked to do a
favor, deliver a package to a friend. And I showed up. I turned it over. . . . And
agents came and arrested me . . . .” The magistrate judge interrupted, asking,
“Did you know what was in the package?” to which Arellano responded, “No,
ma’am.” The magistrate judge then told Arellano that she could not accept his
guilty plea, leading to an off-the-record discussion between Arellano and his
counsel. 3 The magistrate judge told Arellano that “there has to be a factual
basis to support [his] plea of guilty” and that if he “didn’t know what [he was]
delivering, then there is not a factual basis to support the plea.” After
conferring further with his client, Arellano’s trial counsel said, “I think we’re
done, your Honor,” and the hearing was adjourned.
       The government issued a superseding indictment, again charging
Arellano with conspiracy to possess five kilograms of cocaine with intent to
distribute, as well as for possession of a firearm in furtherance of a drug-
trafficking crime, in violation of 18 U.S.C. § 924(c). The case proceeded to trial.
       Before the trial began, the district court asked whether, despite the plea
offers that it “presume[d]” that Arellano had received, Arellano wanted “to
maintain [his] innocence and go to trial.” Arellano stated that he did. At trial,
Arellano was acquitted of the firearm-possession charge but convicted of the
drug-conspiracy charge. The jury specifically found that Arellano “was
individually responsible for or could reasonably have foreseen that the
conspiracy involved” at least five kilograms of cocaine.
       The presentence investigation report determined that Arellano’s base
offense level was 30, because his offense involved between five and fifteen



       3 Arellano is represented on appeal by different counsel than represented him before
the district court.
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                                  No. 18-40857
kilograms of cocaine, and that his offense level should be increased by two,
because Arellano possessed a dangerous weapon—that is, the firearm—in
relation to the crime. Arellano’s counsel filed no objections to the presentence
report and confirmed his lack of objections at the sentencing hearing. The
district court adopted the presentence report’s factual findings and guideline
calculations and sentenced Arellano to 188 months’ imprisonment, at the high
end of the guideline range. This appeal followed.
                                       II.
      Arellano raises three arguments on appeal. First, he argues that it was
error for the magistrate judge to refuse his guilty plea. Second, he argues that
the evidence failed to connect him to at least five kilograms of cocaine. And
third, he argues that his sentence enhancement for possession of a weapon was
unsupported by the evidence. Arellano acknowledges that none of these
arguments was preserved below.
                                       A.
      A criminal defendant has “no absolute right to have a guilty plea
accepted.” Santobello v. New York, 404 U.S. 257, 262 (1971). Indeed, a district
court may not accept a guilty plea unless it has first “determine[d] that there
is a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). “The factual basis
cannot be implied from the fact that the defendant entered a plea”; rather,
“[t]he sentencing court must satisfy itself, through an inquiry of the defendant
or examination of the relevant materials in the record, that an adequate
factual basis exists for the elements of the offense.” United States v. Adams,
961 F.2d 505, 508 (5th Cir. 1992); see also Santobello, 404 U.S. at 261 (“[T]he
sentencing judge must develop, on the record, the factual basis for the plea, as,
for example, by having the accused describe the conduct that gave rise to the
charge.”). Once this requirement is satisfied, the district court may still reject
the guilty plea for “good reason.” United States v. Martinez, 486 F.2d 15, 20
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                                       No. 18-40857
(5th Cir. 1973). 4 This decision “is committed to the ‘sound judicial discretion’
of the trial judge.” Id. (quoting Santobello, 404 U.S. at 262); cf. United States
v. Foy, 28 F.3d 464, 472 (5th Cir. 1994) (“A district court’s rejection of a plea
agreement is reviewed for abuse of discretion.”). 5
       The record in this case contains no suggestion that the magistrate judge
abused her discretion in refusing to allow Arellano to plead guilty while
maintaining that he was unaware that he was transporting cocaine. The
prosecution’s theory of the drug conspiracy was that Arellano was a courier.
This theory followed straightforwardly from the evidence: undercover officers
had arranged to purchase cocaine from a target, and Arellano was the man
who showed up with the drugs. Thus if Arellano did not know that he was
delivering drugs, then it would be difficult to conclude that he “knew of the
existence of the agreement,” a necessary element of the offense, United States
v. Thomas, 690 F.3d 358, 366 (5th Cir. 2012).
       Arellano argues that denying knowledge of the contents of his delivery
did not destroy the factual basis for his guilty plea because he had admitted to
the prosecutor’s recitation of the facts—which included his knowing about the
drug conspiracy—and delivering anything in furtherance of that conspiracy
would have been criminal. While Arellano may be correct that a conviction for


       4 Both parties cite to Winters v. Cook, 489 F.2d 174, 179 (5th Cir. 1973), in which we
spoke of a “right to plead guilty.” That language, however, was meant to distinguish decisions
that defense attorneys may make from those that must be made by defendants themselves.
See id. at 178-80. Although criminal defendants have a “personal fundamental right” to
decide for themselves whether to plead guilty, id. at 179, it is a longstanding principle that
they have no “absolute right” for their guilty pleas to be accepted, Martinez, 486 F.2d at 20
(quoting Lynch v. Overholser, 369 U.S. 705, 719 (1962)), which is what this case is about.
       5 The parties dispute the consequence of Arellano’s failure to object to the court’s

refusal to accept his guilty plea. Citing a case involving the related but distinct context of a
challenge to an acceptance of a guilty plea, United States v. Reyes, 300 F.3d 555, 558 (5th Cir.
2002), Arellano argues that our review is for plain error. By contrast, the government asserts
that Arellano’s pretrial statement that he wished to proceed to trial, see supra Part I, waived
his right to appeal altogether. Because we conclude that the magistrate judge acted well
within her discretion, we need not address this issue.
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                                         No. 18-40857
conspiring to possess drugs does not necessarily require possession of drugs,
he did not say anything about a drug conspiracy when summarizing his
conduct. Rather, he stated only that he was “deliver[ing] a package to a friend,”
in language that failed to inculpate him whatsoever. Moreover, after having
two opportunities to discuss the issue with his counsel, he made no attempt to
amend his statement or otherwise explain what made him guilty of the crime
charged. Instead, his counsel ended the hearing. 6 Under the circumstances, we
cannot say that the magistrate judge abused her discretion in rejecting the
plea.
                                               B.
        Next, Arellano argues that the evidence at trial was insufficient to tie
him to at least five kilograms of cocaine. We typically review such an argument
“with substantial deference to the jury verdict, asking only ‘whether a rational
jury could have found each essential element of the offense beyond a reasonable
doubt.’” United States v. Delgado, 672 F.3d 320, 330 (5th Cir. 2012) (en banc)
(citation omitted). Here, however, Arellano’s trial counsel failed to move for a
judgment of acquittal, and thus we apply an “even stricter” standard of
review—plain error. Id. at 328, 330.
        Reversal on plain-error review requires “an error or defect” that is “clear
or obvious” and that “affected the appellant’s substantial rights.” Puckett v.
United States, 556 U.S. 129, 135 (2009) (citing United States v. Olano, 507 U.S.
725, 732-34 (1993)). In a challenge to the sufficiency of evidence, “an error is
‘clear or obvious’ only if the record is devoid of evidence pointing to guilt, or the
evidence on a key element of the offense is so tenuous that a conviction would
be shocking.” United States v. Suarez, 879 F.3d 626, 630-31 (5th Cir. 2018)
(cleaned up) (quoting United States v. McDowell, 498 F.3d 308, 312 (5th Cir.


        6   The record reveals no subsequent attempt by Arellano to plead guilty.
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                                     No. 18-40857
2007)). If the district court committed such an error, we then have “the
discretion to remedy the error—discretion which ought to be exercised only if
the error ‘seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.’” Puckett, 556 U.S. at 135 (alteration in original) (quoting
Olano, 507 U.S. at 736).
      The question at issue here is whether there was sufficient evidence to
support the jury’s finding that Arellano “was individually responsible for or
could reasonably have foreseen that the conspiracy involved” at least five
kilograms of cocaine. See United States v. Gonzalez, 907 F.3d 869, 874 (5th Cir.
2018) (noting that defendant will be held liable for “only those amounts of
drugs that he knew or reasonably could have known or believed were involved
in the conspiracy” (citation omitted)). It is undisputed that Arellano had been
in possession of only 4.949 kilograms of cocaine when he was arrested. 7 And
although the government points to an array of evidence that their target dealt
in larger quantities of cocaine, the government identifies no direct evidence
that Arellano himself was involved in or aware of any drug deals other than
the one during which he was arrested.
      On the other hand, a rational jury could have concluded that Arellano
would have reasonably foreseen that the drug deal he was taking part in, which
involved the use of a car with a secret compartment, was not the full extent of
the conspiracy. Cf. Gonzalez, 907 F.3d at 875 (“[A]n individual dealing in a
sizable amount of controlled substances ordinarily would be presumed to
recognize that the drug organization with which he deals extends beyond his
universe of involvement.” (citation omitted)). Or a rational jury could have



      7 The government argues that Arellano was supposed to be delivering five kilograms,
but their evidence for that is an agreement to which Arellano was not a party. Although
Arellano was ultimately entrusted with the delivery, there is no evidence that he knew how
much cocaine the undercover officer was expecting to receive.
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                                      No. 18-40857
concluded that Arellano, who had in his possession a handgun with an
obliterated serial number and three cell phones, was more than a one-time
courier. To be sure, this is not strong evidence that Arellano foresaw that the
conspiracy involved additional cocaine, but under the plain-error standard of
review, “close calls must be resolved in favor of the jury verdict,” Delgado, 672
F.3d at 332 n.11. This is one such call. Arellano has not demonstrated plain
error.
                                            C.
         Finally, Arellano argues that it was error for the district court to increase
his sentence based on his possession of a handgun at the time of his arrest.
Because this issue was also not preserved, we again review the district court’s
determination for plain error. See United States v. Huerra, 884 F.3d 511, 519
(5th Cir. 2018).
         Although the jury did not find beyond a reasonable doubt that Arellano
possessed a firearm in furtherance of a drug-trafficking crime, Arellano
acknowledges that district court needed only a preponderance of the evidence
to find a connection between the gun and the crime. 8 Still, he argues that the
circumstances in which the gun was found—unloaded, in a zippered pouch
inside a larger zippered bag along with his clothing and toiletries—made it
improbable that there was any connection between the drug deal and the gun.
         Under the sentencing guidelines, “[t]he government may satisfy its
burden of proving a connection by ‘providing evidence that the weapon was
found in the same location . . . where part of the transaction occurred.’” United
States v. Mitchell, 31 F.3d 271, 278 (5th Cir. 1994). Here, it was. Thus, the
district court could apply the sentence enhancement “unless it was clearly



        “[A] sentencing court may consider conduct of which a defendant has been acquitted.”
         8

United States v. Watts, 519 U.S. 148, 154 (1997).
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                                 No. 18-40857
improbable that the handgun was connected to the drug transaction.” United
States v. Paulk, 917 F.2d 879, 882 (5th Cir. 1990). In this regard, we have said
that the enhancement can apply even when the gun at issue is inoperable,
unloaded, and locked in a glove compartment. See id. Given this caselaw, the
district court’s finding of a connection was not clearly or obviously erroneous.
                                      III.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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