     Case: 07-11016     Document: 00511007877          Page: 1    Date Filed: 01/19/2010




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

                                                  FILED
                                                                          January 19, 2010

                                     No. 07-11016                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

SAUL BARBOZA DELGADO,

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 4:06-CR-42-ALL


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Saul Barboza Delgado pled guilty pursuant to an agreement to two counts
of distribution of marijuana and one count of possession of a machine gun. He
was sentenced to 240 months’ imprisonment and to thee years of supervised
release. Delgado argues that the factual basis was insufficient to support his
guilty plea to the charge of possession of a machine gun and that his plea was
involuntary.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 07-11016         Document: 00511007877          Page: 2     Date Filed: 01/19/2010



                                         No. 07-11016

       This court reviews the district court’s acceptance of a guilty plea for clear
error.1 To establish a violation of 18 U.S.C. § 922(o)(1), the Government must
prove beyond a reasonable doubt that the defendant knowingly possessed a
machine gun.2 At the arraignment hearing Delgado admitted to the allegation
set forth in Count Five of the indictment: that he “knowingly possessed a
machine gun” on or about February 21, 2006. Delgado also stipulated to the
truth of the facts contained in the factual resume which he acknowledged
signing. The factual basis, which reflects that Delgado placed a machine gun in
the trunk of his car, is sufficient to support all of the elements of the offense.3
       Delgado also asserts his guilty plea was involuntary because he was
entrapped into receiving automatic weapons in exchange for marijuana or
alternatively the product of sentence factor manipulation. However, the record
establishes that Delgado’s plea was knowing and voluntary 4 and the record
shows that Delgado understood his plea agreement and he had no questions
regarding the appeal waiver provision. As such, Delgado waived any right to
assert a defense of entrapment.5                The judgment of the district court is
AFFIRMED.




       1
           United States v. Hildenbrand, 527 F.3d 466, 475 (5th Cir. 2008).
       2
           See United States v. Gonzales, 121 F.3d 928, 936 (5th Cir. 1997).
       3
        See id.; United States v. Toro, 840 F.2d 1221 (5th Cir. 1988) (finding possession even
though officers effectively prevented defendant from making-off with contraband).
       4
        United States v. Washington, 480 F.3d 309, 315-316 (5th Cir. 2007); United States v.
Gaitan, 954 F.2d 1005, 1011 (5th Cir. 1992).
       5
           United States v. Portillo, 18 F.3d 290, 292-93 (5th Cir. 1994).

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