      Case: 17-10408     Document: 00514415223         Page: 1    Date Filed: 04/04/2018




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                      No. 17-10408                          FILED
                                                                         April 4, 2018
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk

              Plaintiff - Appellee

v.

GAGAN SETHI,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-243-8


Before KING, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Gagan Sethi appeals his 48-month sentence resulting from a guilty plea
for conspiracy to distribute a controlled substance analogue under 21 U.S.C.
§    846.    Sethi advances four arguments: (1) the district court lacked
jurisdiction; (2) there was a “structural error” at his rearraignment,
warranting reversal even if the error did not affect Sethi’s plea decision; (3) the
magistrate judge plainly erred by failing to ensure that Sethi understood the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-10408
mens rea element of his charge and that the facts sufficiently showed such
mens rea; and (4) the judgment erroneously states that Sethi was convicted of
conspiracy to distribute both “a controlled substance” and “a controlled
substance analogue.”
      Because we conclude that the district court had jurisdiction and that
Sethi failed to show that any error was structural or plain, we AFFIRM. But
we also REFORM the judgment to reflect that Sethi was convicted only of
conspiracy to distribute a controlled substance analogue.
                               I. Background
      Sethi waived prosecution by indictment and was charged in a one-count
superseding information with conspiring to knowingly distribute a Schedule I
controlled substance. 1 The information also charged Sethi with conspiring to
distribute a Schedule I controlled substance analogue, namely, FUB-AMB and
5-FLUORO-AMB, as defined in 21 U.S.C. § 802(32), while knowing that the
substance was intended for human consumption, as set forth in 21 U.S.C.
§ 813.
      Sethi entered a guilty plea before a magistrate judge. His factual resume
contained various handwritten edits that limited Sethi’s offense conduct to
conspiring to distribute FUB-AMB. At rearraignment, Sethi confirmed that
he reviewed the charge brought against him, understood the charge, and
waived reading of the superseding information. Further, after the Government
read four elements of his offense into the record, Sethi confirmed that he
understood and admitted to committing them. Finally, Sethi confirmed that
he had read his factual resume, understood it, agreed that the facts in the
resume were true and correct, and waived reading of the resume.


      1 The controlled substances were AB-CHMINACA, AB-FUBINACA, AB-PINACA, and
XLR-11, which are Schedule I substances pursuant to 21 U.S.C. § 812 and 21 C.F.R.
§ 1308.11.
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                                  No. 17-10408
      After the magistrate judge recommended that the district court accept
the plea, the district court accepted it. At sentencing, the district court ordered
a below-Guidelines prison term of 48 months and two years of supervised
release. Sethi filed a timely notice of appeal.
                                II. Jurisdiction
      Sethi argues the district court lacked jurisdiction because he was
charged with conduct that does not constitute a federal crime. Specifically, the
factual resume supporting Sethi’s guilty plea identifies his offense as
conspiring to distribute FUB-AMB, which Sethi argues is not a Schedule I
controlled substance or controlled substance analogue. In turn, Sethi argues
the factual resume “constructively amended” the superseding information so
that it charged him only with conspiring to distribute something that is not a
controlled substance or controlled substance analogue.
      A party never forfeits or waives the right to raise the district court’s lack
of subject matter jurisdiction, an issue we review de novo. See United States
v. Cotton, 535 U.S. 625, 630 (2002); United States v. Isgar, 739 F.3d 829, 838
(5th Cir. 2014). We conclude that the district court had jurisdiction because
the superseding information charged Sethi with violating § 846 and defects in
the charging instrument, “such as insufficient factual allegations, do not
deprive the court of jurisdiction.” Isgar, 739 F.3d at 838; see also 18 U.S.C.
§ 3231 (providing district courts with jurisdiction over all federal offenses).
Moreover, assertions that the facts do not satisfy an element of the offense go
only to the merits of a case. See Isgar, 739 F.3d at 838; United States v.
Montemayor, 668 F. App’x 96, 97–98 (5th Cir. 2016) (per curiam).
      Sethi’s argument that his factual resume “constructively amended” the
superseding information is also misplaced. “A constructive amendment occurs
when the government changes its theory . . . to convict on a basis broader than
that charged in the indictment, or when the government is allowed to prove an
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essential element of the crime on an alternative basis permitted by the statute
but not charged in the indictment.” United States v. Robles-Vertiz, 155 F.3d
725, 728 (5th Cir. 1998) (internal quotation marks and citation omitted). There
was no constructive amendment in Sethi’s case, as the district court accepted
Sethi’s plea based on the same theory and conduct that the superseding
information charged. See id. at 728.
                           III. Standard of Review
      Sethi concedes, and the record confirms, that his appeal is subject to
plain error review because he did not raise these issues in the district court.
See Johnson v. United States, 520 U.S. 461, 466–67 (1997); United States v.
Alvarado-Casas, 715 F.3d 945, 951–53 (5th Cir. 2013). To establish plain error,
a defendant “must show (1) an error (2) that was clear or obvious (3) that
affected his substantial rights.” See United States v. Avalos-Martinez, 700 F.3d
148, 153 (5th Cir. 2012) (per curiam) (citation omitted).
      An error is “clear or obvious” if controlling circuit or Supreme Court
precedent has decided the issue, but not if it remains “subject to reasonable
dispute.” United States v. Scott, 821 F.3d 562, 570–71 (5th Cir. 2016) (internal
quotation marks and citation omitted). To show that an error “affected his
substantial rights,” the appellant must show “a reasonable probability that,
but for the error, he would not have entered the plea.”          United States v.
Broussard, 669 F.3d 537, 546 (5th Cir. 2012) (quoting United States v.
Dominguez Benitez, 542 U.S. 74, 83 (2004)). Alternatively, certain errors may
affect “substantial rights” if they are “structural” errors that “undermine the
fairness of a criminal proceeding as a whole.” United States v. Davila, 569 U.S.
597, 611 (2013); see United States v. Marcus, 560 U.S. 258, 263 (2010). If plain
error is established, “we have the discretion to correct the error if it ‘seriously
affects the fairness, integrity or public reputation of judicial proceedings.’”


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Avalos-Martinez, 700 F.3d at 153 (quoting Puckett v. United States, 556 U.S.
129, 135 (2009)).
                               IV. Discussion
      Sethi argues the magistrate judge made a structural error at his
rearraignment by failing to have the Government read out loud the
superseding indictment and factual resume in open court.         Based on this
failure, Sethi argues the magistrate judge could not have satisfied himself that
there was a sufficient factual basis for his plea, as required by Federal Rule of
Criminal Procedure 11(b)(3). Sethi further argues that the failure to satisfy
Rule 11(b)(3) is a structural error that denied him due process and thus
warrants reversal regardless of whether it affected his plea decision. We
conclude, however, that there was no Rule 11(b)(3) error.
      A district court may not enter a judgment of conviction based on a guilty
plea unless it determines that there is a factual basis for the plea. FED. R.
CRIM. P. 11(b)(3).   In doing so, the district court “compare[s] the conduct
admitted by the defendant with the elements of the offense charged,” and must
verify that the factual conduct admitted to is sufficient as a matter of law to
establish a violation under the relevant statute. United States v. Trejo, 610
F.3d 308, 313 (5th Cir. 2010). A court may determine that there is a sufficient
factual basis by examining the relevant materials in the record, and we assume
the court fulfilled its obligation to do so where the record reveals “specific
factual allegations supporting each element of the offense.” See United States
v. Adams, 961 F.2d 505, 508 (5th Cir. 1992).
      Sethi argues there was not a sufficient factual basis to support the mens
rea element of his charged offense. In drug prosecutions involving a controlled
substance analogue, the Government must prove that a defendant knew (1)
that he was dealing with some controlled substance listed on the federal drug
schedules or treated as such under § 802(32), or (2) the specific analogue he
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                                       No. 17-10408
was dealing with, even if he did not know its legal status as an analogue.
McFadden v. United States, 135 S. Ct. 2298, 2302, 2305 (2015).                        If the
defendant knew the substance was substantially similar to a controlled
substance in its chemical structure and produced a substantially similar high
or other effect, he had the requisite knowledge. See id. at 2305; see also United
States v. Bays, 680 F. App’x 303, 307 (5th Cir.) (per curiam), cert. denied, 137
S. Ct. 2176 (2017); United States v. Stanford, 823 F.3d 814, 835 (5th Cir.), cert.
denied, 137 S. Ct. 453 (2016).
       The record contains a sufficient factual basis to support the mens rea
element of Sethi’s charged offense. The superseding information charged Sethi
with “conspir[ing] . . . to knowingly and intentionally distribute . . . a Schedule
I controlled substance analogue, as defined in 21 U.S.C. § 802(32).” 2 In the
factual resume, Sethi stipulated that he “reached an agreement with another
person to distribute . . . a Schedule I controlled substance analogue,” and did
so “willfully with the intent to further its unlawful purpose.” Additionally, at
Sethi’s rearraignment, the Government read the essential elements of the
offense, including that a defendant agree to “knowingly distribute . . . a
Schedule I controlled substance analogue,” with knowledge of the unlawful
purpose of the agreement and intent to further that purpose. Sethi stated that
he understood and admitted to committing those elements, as well as the facts
in his factual resume.
       The record thus provides a sufficient factual basis to support the mens
rea element of Sethi’s charged offense. 3 There was, consequently, no “clear or


       2 Under 21 U.S.C. § 802(32), a “controlled substance analogue,” means, inter alia, a
substance substantially similar to a controlled substance in its chemical structure and which
produces a substantially similar high or other effect.
       3 In McFadden, the Court concluded that the challenged jury instructions “did not
fully convey” the required mens rea where they stated that the defendant had to “‘knowingly
and intentionally distribut[e] a mixture or substance that has an actual, intended, or claimed
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                                      No. 17-10408
obvious error” under Rule 11(b)(3) and therefore no structural error.                  See
Adams, 961 F.2d at 508.
       Likewise, the magistrate judge did not plainly err in informing Sethi of
the mens rea element of the charged offense. Rule 11 requires that the district
court “inform the defendant of, and determine that the defendant understands
. . . the nature of each charge to which the defendant is pleading.” FED. R.
CRIM. P. 11(b)(1)(G). Generally, this requirement is met if the defendant is
made aware of the elements of the offense charged. See United States v.
Lujano-Perez, 274 F.3d 219, 224 (5th Cir. 2001).
       The word “knowingly” was in the statement of elements read at Sethi’s
rearraignment and in the superseding information. Sethi confirmed that he
understood both. Sethi also confirmed that he discussed the charge with his
counsel. Together, these factors sufficiently show that Sethi was made aware
that an element of his charged offense was knowledge that the relevant
substance was a Schedule I controlled substance analogue. See id. at 224
(discussing evidence that is sufficient to show that the defendant understands
the nature of the charge).
       Nor did the magistrate judge commit plain error by allowing Sethi to
waive the reading of his superseding indictment and factual resume in open
court. A district court’s failure to have the indictment and factual basis read
into the record does not, by itself, constitute reversible plain error. United
States v. Lee, 694 F. App’x 318, 318–19 (5th Cir.) (per curiam), cert. denied, 138




stimulant, depressant, or hallucinogenic effect on the central nervous system’ substantially
similar to that of a controlled substance.” 135 S. Ct. at 2307. In Sethi’s case, the factual
allegations supporting his plea point to a much narrower mens rea: “knowingly and
intentionally distribu[ting] . . . a Schedule I controlled substance analogue.” As the
McFadden Court observed, “knowingly” applies not just to the verb “distributing” but also to
the object of the verb, “a Schedule I controlled substance analogue.” Id. at 2304.

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S. Ct. 404 (2017). Any error is “at best, harmless error,” where the record
shows that the defendant reviewed the charging document and the factual
resume and agreed with the facts therein. Id; see also United States v. Grote,
632 F.2d 387, 389 (5th Cir. 1980) (rejecting a challenge to the trial court’s
failure at arraignment to read the charging document and state the substance
of the charge where counsel advised appellant of charge).
      The record here shows that Sethi reviewed and understood the charge in
his superseding indictment, and reviewed and agreed that the facts in his
factual resume were true and correct. Further, Sethi’s counsel stated that he
advised Sethi regarding his plea, and Sethi confirmed that he was fully
satisfied with his counsel’s advice. Any error, therefore, does not rise to the
level of plain error.
      Sethi lastly argues that the judgment should be reformed to show that
he was convicted only of conspiracy to distribute a controlled substance
analogue, and not also of conspiracy to distribute a controlled substance. The
Government does not oppose his request.
      We have the discretion under 28 U.S.C. § 2106 “either to reform the
judgment or to remand for the district court to do so.”        United States v.
Hermoso, 484 F. App’x 970, 973 (5th Cir. 2012) (per curiam); see also United
States v. Fuentes, 506 F. App’x 330, 332 (5th Cir. 2013) (per curiam) (affirming
judgment and reforming it to reflect the correct offense of conviction). Because
the factual resume was edited to remove references to controlled substances,
Sethi is entitled to a reformation of the judgment to reflect the correct offense
of conviction.    We therefore AFFIRM the district court’s judgment, but
REFORM it to reflect that Sethi was convicted of conspiracy to distribute a
controlled substance analogue.
      AFFIRMED.


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