     Case: 11-20918       Document: 00512105562         Page: 1     Date Filed: 01/08/2013




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

                                                                            FILED
                                                                          January 8, 2013
                                     No. 11-20918
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RAYMOND BUCHANAN, Jr.,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CR-454-1


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Raymond Buchanan, Jr., pleaded guilty to one count of bank fraud and one
count of aggravated identity theft. He argues that the district court plainly
erred by failing to ensure that the factual basis established an essential element
of the offense of aggravated identity theft. Buchanan contends that the factual
basis did not establish that he knew that the means of identification he used
belonged to a real person. Because Buchanan failed to object in the district



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-20918

court, review is limited to plain error. See United States v. Marek, 238 F.3d 310,
315 (5th Cir. 2001) (en banc).
      “[T]he determinative question is whether there is an adequate factual
basis in the record from which the district court could conclude as a matter of
law that [the defendant’s] conduct satisfies each element of [the offense].” Id. at
314; FED. R. CRIM. P. 11(b)(3). “[I]nferences may be ‘fairly drawn’ from the
evidence adduced after the acceptance of a guilty plea but before or at
sentencing.” United States v. Hildenbrand, 527 F.3d 466, 475 (5th Cir. 2008).
      To establish aggravated identity theft, the Government must prove that
Buchanan (1) knowingly used (2) the “means of identification” belonging to
another person (3) without lawful authority (4) during and in relation to a
violation of bank fraud. See 18 U.S.C. § 1028A; United States v. Stephens, 571
F.3d 401, 404-05 (5th Cir. 2009). In Flores-Figueroa v. United States, 129 S. Ct.
1886, 1888 (2009), the Supreme Court held that in order to convict a defendant
of aggravated identity theft pursuant to § 1028A, the Government must prove
that the defendant knew that the means of identification he unlawfully
possessed actually belonged to another person.
      While nothing in the record explicitly states that Buchanan knew that Roy
Fisher was a real person, the evidence was sufficient for the district court to
fairly draw that inference. See Hildenbrand, 527 F.3d at 475; see also United
States v. Smith, 416 F. App’x 416, 420 (5th Cir. 2011). The indictment charged
that Buchanan “knowingly and without legal authority used a means of
identification of another, that is, names, birth dates, and the social security
numbers assigned to the individuals listed below, during and in relation to [bank
fraud].” The indictment then stated that the initials of one of the individuals
was “R.F.” and it also set forth the individual’s social security number.
Moreover, at rearraignment, the district court stated that the Government had
to prove beyond a reasonable doubt that Buchanan “knowingly transferred,
possessed, or used without lawful authority a means of identification of another

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                                     No. 11-20918

person.” Finally, the factual basis set forth that the Postal Service contacted
“the true Roy G. Fisher” who lived in Michigan and that he advised the Postal
Service “that he did not apply for the loan at Wachovia Bank and he did not open
the joint checking accounts or otherwise give Mr. Buchanan permission to use
his name.” Because the district court could fairly draw the inference that
Buchanan knew that the identity he used belonged to a real person, Buchanan
fails to show that the district committed a clear or obvious error. See Marek, 238
F.3d at 315; Hildenbrand, 527 F.3d at 475; Smith, 416 F. App’x at 420.1
       Buchanan also argues that the district court plainly erred in failing to
admonish him on an element of the offense of aggravated identity theft. He
contends that the district court failed to admonish him that the Government had
to prove that he knew that the means of identification used belonged to a real
person. Because Buchanan failed to object in the district court, review is limited
to plain error. See United States v. Vonn, 535 U.S. 55, 59 (2002).
       A district court is required by Rule 11 to address the defendant and inform
him of the nature of the charges. FED. R. CRIM. P. 11(b)(1)(G). The requirement
that the defendant understand the nature of the charge against him “refers to
the elements of the offense.” United States v. Lujano-Perez, 274 F.3d 219, 224
(5th Cir. 2001). While there are no precise guidelines as to what is sufficient to
meet this standard, “‘the court must have a colloquy with the defendant that
would lead a reasonable person to believe that the defendant understood the
nature of the charge.’” United States v. Reyes, 300 F.3d 555, 559 (5th Cir. 2002)
(quoting United States v. Reyna, 130 F.3d 104, 110 (5th Cir. 1997)).




      1
         Smith also succinctly distinguishes the two unpublished cases upon which Buchanan
relies: United States v. Kayode, 381 F. App’x 323 (5th Cir. 2010)(unpublished) and United
States v. Ogbemudia, 364 F. App’x 72 (5th Cir. 2010)(unpublished). Smith notes that in both
of these cases, the Government confessed error and agreed that the factual basis was
insufficient to support he conviction. 416 F. App’x at 420. “Here, the Government has made
no such concession . . . .” Id.

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                                  No. 11-20918

      Even if we were to conclude that the district court committed “obvious”
error in this regard, Buchanan fails to show that the error affected his
substantial rights because he does not contend that he would not have pleaded
guilty but for the court’s alleged error. See United States v. Dominguez Benitez,
542 U.S. 74, 83 (2004) (“[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”). Although the district court did not specifically state that
the Government had to prove that Buchanan knew that the means of
identification he used belonged to a real person, there is no evidence that this
lack of specific information affected Buchanan’s decision to plead guilty. See
United States v. Smith, 184 F.3d 415, 417 (5th Cir. 1999) (finding that the
defendant’s substantial rights were not affected because there was no indication
that the district court’s error affected her decision to plead guilty). Moreover,
this is not the type of case that implicates our discretion because it does not call
into question the fairness, integrity, or public reputation of judicial proceedings.
See United States v. Olano, 507 U.S. 725, 732 (1993). Accordingly, Buchanan
cannot show plain error requiring reversal. The judgment of the district court
is therefore AFFIRMED.




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