     Case: 18-40928       Document: 00515037969         Page: 1     Date Filed: 07/17/2019




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

                                     No. 18-40928                            FILED
                                   Summary Calendar                      July 17, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JORGE LUIS RODRIGUEZ-SANCHEZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:17-CR-728-7


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Jorge Luis Rodriguez-Sanchez appeals his guilty-plea conviction for
conspiracy to possess, with intent to distribute, 28 grams or more of a mixture
and substance containing cocaine base, in violation of 21 U.S.C. §§ 846,
841(a)(1), (b)(1)(B).      He contends: the factual basis for his guilty plea
established, at most, that he aided and abetted a drug transaction; and, that it
fails to establish he agreed to participate in a conspiracy.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 18-40928     Document: 00515037969      Page: 2   Date Filed: 07/17/2019


                                  No. 18-40928

      Because Rodriguez did not challenge the factual basis in district court,
our review is for plain error only. E.g., United States v. Broussard, 669 F.3d
537, 546 (5th Cir. 2012). Under that standard, Rodriguez must show a forfeited
plain (clear or obvious) error that affected his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). In cases raising challenges to a guilty
plea based on alleged failures to comply with Federal Rule of Criminal
Procedure 11(b)(3) (“Before entering judgment on a guilty plea, the court must
determine that there is a factual basis for the plea.”), and assuming arguendo
a clear or obvious error, our court has held defendant satisfies the affected-
substantial-rights prong by showing a reasonable probability that, but for the
district court’s error, he would not have pleaded guilty. See United States v.
Nepal, 894 F.3d 204, 212 (5th Cir. 2018), cert. denied, 139 S. Ct. 831 (2019). If
he does so, we have the discretion to correct the reversible plain error, but
should do so only if it “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings”. Puckett, 556 U.S. at 135.
      Rodriguez’ claim he need not demonstrate a reasonable probability that
he would not have pleaded guilty because he alleges a due-process violation,
rather than a simple violation of Rule 11(b)(3), is meritless. See United States
v. Davila, 569 U.S. 597, 609–11 (2013). Again, assuming arguendo the factual
basis was plainly insufficient, Rodriguez cannot demonstrate the error affected
his substantial rights because he fails to assert in the alternative that the error
affected his decision to plead guilty. See United States v. Charles, 469 F.3d
402, 408 (5th Cir. 2006).
      AFFIRMED.




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