     Case: 13-51112      Document: 00512820295         Page: 1    Date Filed: 10/30/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-51112
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         October 30, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JEFFREY ALLAN MCMARYION,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:13-CR-141-1


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Jeffrey Allan McMaryion pleaded guilty, pursuant to a written
agreement, to conspiracy to intentionally and knowingly possess with intent to
distribute, distribute, and manufacture 280 grams or more of a mixture and
substance containing a detectable amount of cocaine base, or crack.                            The
district court sentenced him to 262 months of imprisonment and 10 years of




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-51112     Document: 00512820295      Page: 2   Date Filed: 10/30/2014


                                  No. 13-51112

supervised release. McMaryion now appeals his conviction, arguing that there
was an insufficient factual basis for his plea.
      The Government’s threshold contention that McMaryion’s appeal is
barred by the waiver in his plea agreement is without merit. As we have
previously held, a valid appeal waiver does not bar appellate review of a claim
that the factual basis is insufficient to establish the elements of the offense.
United States v. Trejo, 610 F.3d 308, 312-13 (5th Cir. 2010). Nevertheless,
because McMaryion raises this issue for the first time on appeal, our review is
for plain error, as he concedes. See United States v. Broussard, 669 F.3d 537,
546 (5th Cir. 2012). We consult the entire record in making our assessment.
See Trejo, 610 F.3d at 317.
      In order to prove that a defendant was part of a drug conspiracy, the
government must prove three elements: “(1) an agreement between two or
more persons to violate the narcotics laws, (2) the defendant’s knowledge of the
agreement, and (3) the defendant’s voluntary participation in the conspiracy.”
United States v. Zamora, 661 F.3d 200, 209 (5th Cir. 2011) (citations omitted).
This court has previously explained that “[a] jury may ‘infer the existence of
an agreement [to a conspiracy] from . . . circumstantial evidence.’” Id. (quoting
United States v. Garcia, 567 F.3d 721, 732 (5th Cir. 2009)). Further, “[a]n
express agreement is not required; a tacit, mutual agreement with common
purpose, design, and understanding will suffice.” Zamora, 661 at 209 (citations
omitted).
      McMaryion admitted in the factual basis that law enforcement officers
found crack, currency, and drug distribution items at the home of codefendants
Sanders and Carter; that cooperating defendants stated that McMaryion,
Sanders, and Carter manufactured and distributed crack; and that a person
identified as “Dino” supplied McMaryion and Sanders with powder cocaine.



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                                  No. 13-51112

Further, the presentence report provided that McMaryion and Sanders
received powder cocaine from their source and took it into Carter’s residence
to convert it to crack. In addition, the superseding indictment, which was read
at rearraignment and the terms of which were recited in the plea agreement,
provided that McMaryion, Sanders, and Carter “did combine, conspire,
confederate and agree together, with each other, and with others . . . to possess
with intent to distribute, distribute, and manufacture a controlled substance.”
(emphasis added).    The record as a whole is thus sufficient to permit an
inference that McMaryion knowingly entered into an agreement with others to
violate narcotics laws and voluntarily participated in that agreement. See
Zamora, 661 F.3d at 209.
      McMaryion’s contention that the district court did not explain the
meaning of conspiracy, which further affected the sufficiency of the factual
basis, likewise fails.     The indictment, which charged McMaryion with
conspiracy and provided that McMaryion and others agreed to violate drug
laws, was read at the rearraignment and McMaryion repeatedly affirmed that
he understood the charges and that he had no questions about the charges. He
also affirmed reviewing the indictment with counsel. The plea agreement
likewise recited the terms of the indictment, and McMaryion averred that he
understood the plea agreement. On this record, we find no reversible plain
error. See United States v. Reyes, 300 F.3d 555, 559-60 (5th Cir. 2002).
      AFFIRMED.




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