                                                 [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                           NOV 5, 2008
                            No. 08-10817
                                                         THOMAS K. KAHN
                        Non-Argument Calendar
                                                             CLERK
                      ________________________

               D. C. Docket No. 07-00132-CR-ORL-22GJK

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                 versus

NATALIA HUMM,

                                                       Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                    _________________________

                          (November 5, 2008)

Before BLACK, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:
       Natalia Humm appeals her conviction for immigration fraud under 8 U.S.C.

§ 1325(d) and 18 U.S.C. § 2.1 Humm argues the district court plainly erred by

accepting her guilty plea because there was an insufficient factual basis to support

her conviction. Specifically, she argues the factual basis included no indication

that, at the time she established a commercial enterprise, she did so for the purpose

of evading immigration laws.

       Generally, the court’s “implicit factual finding that the requirements of

[Federal Rule of Criminal Procedure] 11 were satisfied when it accepted the

defendants’ pleas is subject to the clearly erroneous standard of review.” United

States v. Lopez, 907 F.2d 1096, 1099 (11th Cir. 1990). When a defendant does not

raise an objection to a Rule 11 violation in the district court, however, we review

for plain error. United States v. Evans, 478 F.3d 1332, 1338 (11th Cir. 2007), cert.

denied, 128 S. Ct. 257 (2007).

       To establish plain error, a defendant must show there is (1) error,
       (2) that is plain, and (3) that affects substantial rights. If all three
       conditions are met, we may exercise our discretion to recognize a
       forfeited error, but only if the error seriously affects the fairness,
       integrity or public reputation of judicial proceedings. Under plain
       error review, the defendant bears the burden of persuasion with
       respect to prejudice or the effect on substantial rights.


       1
        Humm was also convicted of conspiracy to commit an offense against the United States,
18 U.S.C. § 371, and marriage fraud, 8 U.S.C. § 1325(c) and 18 U.S.C. § 2. She does not appeal
these convictions.

                                              2
Id. (quotation and alteration omitted). An error is plain if it is obvious and clear

under current law. United States v. Humphrey, 164 F.3d 585, 588 (11th Cir. 1999).

      Rule 11(b)(3) requires that, “[b]efore entering judgment on a guilty plea, the

court must determine that there is a factual basis for the plea.” Fed. R. Crim. P.

11(b)(3).

      Requiring this examination of the relation between the law and the
      acts the defendant admits having committed is designed to protect a
      defendant who is in the position of pleading voluntarily with an
      understanding of the nature of the charge but without realizing that
      his conduct does not actually fall within the charge.

McCarthy v. United States, 89 S. Ct. 1166, 1171 (1969) (quotation omitted). “The

standard for evaluating challenges to the factual basis for a guilty plea is whether

the trial court was presented with evidence from which it could reasonably find

that the defendant was guilty.” Lopez, 907 F.2d at 1100. Under 8 U.S.C.

§ 1325(d), it is a crime for a person to “knowingly establish[ ] a commercial

enterprise for the purpose of evading any provision of the immigration laws.” 8

U.S.C. § 1325(d) (2006).

      This Court has not previously addressed what the government must show to

support a conviction under § 1325(d). The plain text of the statute, however,

appears to require that, for Humm to be convicted of violating the statute, one of



                                          3
her reasons for establishing Power of Attorney, Inc., must have been to evade

immigration laws. See 8 U.S.C. § 1325(d). The factual proffer contains no

specific statements regarding Humm’s intent when she established Power of

Attorney, Inc. Humm established the business in May 2003, and the first stated

occurrence of illegitimate activity was approximately two years later in April

2005. Whether a gap of two years makes it unreasonable as a matter of law to

infer Humm established the business for the purpose of evading immigration laws

is not clearly established in this Circuit or in the statute. See 8 U.S.C. 1325(d).

Thus, if there was an error, it was not clear or obvious under current law. See

Humphrey, 164 F.3d at 588.

      Because any error by the district court in determining there was sufficient

factual basis to support a charge under 8 U.S.C. § 1325(d) was not obvious or

clear, there was no reversible error in Humm’s guilty plea. Accordingly, we affirm

Humm’s conviction.

      AFFIRMED.




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