     Case: 08-51134     Document: 00511037287          Page: 1    Date Filed: 02/26/2010




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

                                                  FILED
                                                                          February 26, 2010
                                     No. 08-51134
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

SERGIO CASTILLO-CHAVIRA,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                          USDC No. 3:08-CR-1405-ALL


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Sergio Castillo-Chavira (Castillo) appeals his guilty plea conviction for
importing more than 50 kilograms of marijuana. He argues that the magistrate
judge plainly erred in failing to advise him of the defense of duress and that the
district court erred when it adopted the magistrate judge’s recommendation and
accepted Castillo’s guilty plea.
        When, as here, a defendant argues for the first time on appeal that there
was an insufficient factual basis for his guilty plea, this court reviews the issue

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-51134      Document: 00511037287 Page: 2      Date Filed: 02/26/2010
                                   No. 08-51134

for plain error. United States v. Castro-Trevino, 464 F.3d 536, 540-41 (5th Cir.
2006). Rule 11 contains no provision requiring the district court to advise a
defendant of possible defenses. Further, Castillo has failed to identify, and the
record does not disclose, any Rule 11 violation. Nor did the factual basis supply
facts triggering a duty on the part of the district court to advise Castillo of the
defense. Cf. United States v. Adams, 566 F.2d 962, 968 (5th Cir. 1978). Last,
Castillo’s reliance on facts in the Presentence Report to support a defense of
duress is specious insofar as those facts were not before the court during the plea
colloquy.
         Castillo also argues that, in light of the district court’s statements at
sentencing, the court should have sua sponte set aside the plea agreement.
Castillo, however, did not file a motion to withdraw his guilty plea. Moreover,
the cases on which he relies and are not analogous. Thus, Castillo fails to show
that the district court’s failure to sua sponte set aside the guilty plea was plain
error.
         AFFIRMED.




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