     Case: 11-50019     Document: 00511833455         Page: 1     Date Filed: 04/24/2012




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

                                                                            FILED
                                                                           April 24, 2012
                                     No. 11-50019
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

EYITAYO ARAROMI, also known as Tay,

                                                  Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:09-CR-3143-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Eyitayo Araromi appeals his guilty plea conviction and sentence for
conspiracy to possess with intent to distribute 500 grams or more of a mixture
or substance containing a detectable amount of cocaine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B)(ii), and 846. He contends that his guilty plea was not
knowing and voluntary because the district court failed to comply with the
requirements set forth in Rule 11(b)(1) of the Federal Rules of Criminal
Procedure.     Specifically, Araromi argues that the district court incorrectly

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50019

advised him of the statutory maximum terms of imprisonment and supervised
release and failed to advise him that (1) the Government could use any false
statements against him in a prosecution for perjury; (2) he had the right to be
represented by counsel, appointed by the court if necessary, at trial and at every
other stage of the proceedings; (3) he had the right at trial to testify, present
evidence, and compel the attendance of witnesses; (4) a violation of his
supervised release conditions could subject him to imprisonment for the entire
term of supervised release without credit for any time already served on
supervised release; and (5) he retained the right to appeal his underlying
conviction but was waiving his right to collaterally attack his sentence.
      Because Araromi did not object to these Rule 11 errors in the district
court, we review for plain error and “may consult the whole record when
considering the effect of any error on substantial rights.” United States v. Vonn,
535 U.S. 55, 59 (2002). To show plain error, Araromi must show a forfeited error
that is clear or obvious and that affects his substantial rights. See Puckett v.
United States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have
the discretion to correct the error but only if it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. (quoting United
States v. Olano, 507 U.S. 725, 736(1993)). “[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.” United States v. Dominguez Benitez,
542 U.S. 74, 83 (2004).
      Although the district court failed to comply fully with Rule 11(b)(1),
Araromi makes no attempt to establish a reasonable probability that, but for the
district court’s errors, he would not have pleaded guilty. See id. Further, there
is no evidence in the record suggesting that Araromi would not have pleaded
guilty but for the district court’s errors. See Vonn, 535 U.S. at 59. Therefore, his
substantial rights were not affected, and he cannot show plain error. See id.

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      Araromi also contends that the factual basis was insufficient to support his
guilty plea. He does not dispute the existence of an agreement between two or
more persons to possess with intent to distribute a mixture or substance
containing a detectable amount of cocaine, that he knew of this agreement, or
that he voluntarily participated in the conspiracy.        See United States v.
Patino-Prado, 533 F.3d 304, 309 (5th Cir. 2008). Instead, he contends that the
factual basis was unclear as to the actual weight of the drugs involved in the
conspiracy. See United States v. DeLeon, 247 F.3d 593, 596 (5th Cir. 2001)
(holding that when the indictment charges that a certain minimum quantity of
drugs is involved in the offense, proof of that quantity is a fourth element of the
offense). Because Araromi did not challenge the sufficiency of the factual basis
in the district court, we review for plain error.          See United States v.
Castro-Trevino, 464 F.3d 536, 540-41 (5th Cir. 2006).
      The factual basis provided ample evidence that the conspiracy involved
500 grams or more of a mixture or substance containing a detectable amount of
cocaine. The factual basis provided that in 2008, state and federal agents began
a narcotics trafficking investigation of the Bloods gang in El Paso, Texas. As
part of their investigation, agents seized approximately 400 grams of powder and
crack cocaine from various gang members and associates.              In addition,
co-defendant Kippur David admitted supplying at least 2,520 grams of powder
cocaine to Araromi and other gang leaders. The factual basis was therefore
sufficient to support the district court’s acceptance of Araromi’s guilty plea, and
he cannot show plain error. See id. at 541.
      Araromi also contends that the plea agreement was void for lack of
consideration because the Government surrendered no rights in exchange for his
wholesale capitulation. Because he did not challenge the validity of the plea
agreement in the district court or attempt to withdraw his plea on grounds that
the plea agreement lacked consideration, we review for plain error. See Puckett
v. United States, 556 U.S. 129, 135 (2009).

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      Plea bargains are contractual in nature and, as such, courts are guided by
general principles of contract law in interpreting plea agreements. United States
v. Story, 439 F.3d 226, 231 (5th Cir. 2006). However, this court has never
expressly held that consideration is required to support a valid plea bargain.
United States v. Smallwood, 920 F.2d 1231, 1239-40 (5th Cir. 1991); Smith v.
Estelle, 562 F.2d 1006, 1008 (5th Cir. 1977). Accordingly, even if Araromi’s plea
agreement lacked a bargained for quid pro quo, he cannot establish, based on
existing law, that the district court plainly erred in accepting his plea
agreement. See United States v. Maturin, 488 F.3d 657, 663 (5th Cir. 2007).
      Moreover, Araromi has not shown that his plea agreement lacked
consideration.   In exchange for his guilty plea and appeal waiver, the
Government agreed not to oppose a two-level reduction for acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1(a) and, if applicable, to move for an
additional one-level reduction pursuant to § 3E1.1(b). In United States v.
Newson, 515 F.3d 374, 377-78 (5th Cir. 2008), we held that, based on the plain
language of § 3E1.1(b), the Guidelines do not permit the additional one-level
reduction absent a motion from the Government. Araromi does not dispute that
he received the full three-level reduction under § 3E1.1. Because the plea
agreement bound the Government to do something it was not otherwise required
to do, Araromi has not shown that the plea agreement lacked consideration, and
he cannot show plain error. See Puckett, 556 U.S. at 135.
      Finally, Araromi contends that (1) the district court erred when it
increased his offense level by two levels based on his alleged possession of a
dangerous weapon; (2) the district court erred when it denied his request for a
downward variance based on the disparity between powder and crack cocaine;
(3) the district court erred in calculating the quantity of drugs attributable to
him at sentencing; (4) his sentence was greater than necessary to satisfy the
sentencing goals of 18 U.S.C. § 3553(a); and (5) his sentence was
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), because

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                                  No. 11-50019

the district court treated his prior convictions as sentencing factors rather than
elements of the offense.
      The record reflects that Araromi knowingly and voluntarily waived his
right to appeal his sentence on any ground, and the Government seeks to enforce
the waiver. Therefore, Araromi’s sentencing arguments are barred by the
appellate-waiver provision in his plea agreement and will not be considered. See
United States v. Oliver, 630 F.3d 397, 411-12 (5th Cir.), cert. denied, 132 S. Ct.
758 (2011); United States v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).
      Accordingly, the district court’s judgment is AFFIRMED.




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