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

                                                                  FILED
                                                                 August 26, 2008
                                No. 06-51618
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

COSME GONZALEZ-RODRIGUEZ

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 2:06-CR-417-1


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
      Cosme Gonzalez-Rodriguez (Gonzalez) pleaded guilty to both counts of an
indictment that charged him with conspiracy to possess with intent to distribute
50 kilograms or more of marijuana and with possession with intent to distribute
50 kilograms or more of marijuana. The district court sentenced Gonzalez to 30
months of imprisonment and a three-year term of supervised release.1

      *
      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should not be published and is not precedent except under the limited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.
      1
      In its order issued in response to this court’s remand for a report from the
magistrate judge and review by the district court, the district court accepts the
                                           No. 06-51618

       In his sole issue on appeal, Gonzalez argues that the factual basis orally
recited at his rearraignment hearing was insufficient to support his guilty plea.
Gonzalez does not contend that the factual basis was insufficient to support a
conviction under 21 U.S.C. § 841(a)(1). Instead, he argues only that there was
no allegation of drug quantity in the recited factual basis that would support a
plea to an offense involving 50 kilograms or more of marijuana pursuant to 21
U.S.C. § 841(b)(1)(C).
       Because Gonzalez raises this issue for the first time on appeal, it is
reviewed for plain error. See United States v. Palmer, 456 F.3d 484, 489 (5th
Cir. 2006). To prevail on plain-error review, Gonzalez must show that an error
occurred, that the error was plain, which means clear or obvious, and that the
error affected his substantial rights. See United States v. Olano, 507 U.S. 725,
732-35 (1993). The indictment in this case, which was read aloud and to which
Gonzalez pleaded guilty, alleged the drug quantity at issue and was sufficient
to serve as the factual basis supporting Gonzalez’s pleas. See United States v.
Hildenbrand, 527 F.3d 466, 475 (5th Cir. 2008). Accordingly, he has not shown
plain error. See Olano, 507 U.S. at 732-35.
       The judgment of the district court is AFFIRMED.




magistrate judge’s recommendation to accept the appellant’s guilty plea, but the
order only specifically mentions the first count of the indictment. It is clear from the record that the
district judge misspoke and that the magistrate’s report was accepted in its entirety.

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