     Case: 09-51087     Document: 00511267838          Page: 1    Date Filed: 10/19/2010




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

                                                 FILED
                                                                          October 19, 2010
                                     No. 09-51087
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

CARLOS GUSTAVO OLVERA, also known as Carlos Olvera,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 6:08-CR-4-12


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Carlos Gustavo Olvera pled guilty to conspiracy to launder money in
violation of 18 U.S.C. § 1956(h) and was sentenced to 210 months in prison. The
plea agreement waived appeal of the sentence.
        On appeal, Olvera argues that the district court plainly erred in accepting
his guilty plea because there was an insufficient factual basis to support that he
agreed to enter the money laundering conspiracy in addition to simply
distributing cocaine, the underlying illegal activity.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-51087    Document: 00511267838 Page: 2         Date Filed: 10/19/2010
                                 No. 09-51087

      We start with our conclusion that the appeal waiver does not prevent our
review. A defendant who has validly waived his right to appeal may challenge
the factual basis underlying his guilty plea. United States v. Hildenbrand, 527
F.3d 466, 474 (5th Cir. 2008) (citations omitted). Olvera did not object to the
sufficiency of the factual basis in the district court, which would cause this court
to review the issue only for plain error. See United States v. Palmer, 456 F.3d
484, 489 (5th Cir. 2006). Olvera’s counsel actually went well beyond silent
acquiescence and said, “Defense will gladly waive reading of the factual basis.”
The district court asked the prosecutor if that was acceptable to her. It was.
      Immediately before this exchange, the prosecutor had recited the lengthy
count of the indictment that contained the charge against Olvera. It included
factual statements about the manner in which the conspiracy was committed.
Olvera stated that he had committed the acts charged.
      A district court cannot enter a judgment of conviction based upon a guilty
plea unless there is a factual basis for the plea. Fed. R. Crim. P. 11(b)(3). The
court is required to “determine that the factual conduct to which the defendant
admits is sufficient as a matter of law to constitute a violation of the statute.”
United States v. Marek, 238 F.3d 310, 314 (5th Cir. 2001) (en banc).
      Olvera contends that the language of the indictment read at the hearing
did not establish his agreement to be part of a conspiracy to launder money.
Though the charge did not specifically state that Olvera agreed to be a part of
this conspiracy, his agreement may be inferred from the remainder of the
charge. See United States v. Casilla, 20 F.3d 600, 603 (5th Cir. 1994).
      Given Olvera’s admission and waiver of a reading of the factual basis, the
district court did not plainly err in finding a sufficient factual basis for his plea
to conspiracy to launder money. See United States v. Trejo, 610 F.3d 308, 319-20
(5th Cir. 2010).
      AFFIRMED.
