     Case: 08-41185     Document: 00511253428          Page: 1    Date Filed: 10/05/2010




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

                                                  FILED
                                                                           October 5, 2010

                                     No. 08-41185                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

CLAYTON EVANS STOTTS,

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:08-CR-47-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Appellant Clayton Evans Stotts (“Stotts”) appeals his conviction and 188-
month sentence for conspiracy to possess with intent to distribute more than 15
kilograms of cocaine on the grounds that the district court lacked a sufficient
factual basis to accept his guilty plea. We AFFIRM.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-41185

                 I. Factual and Procedural Background
      On February 23, 2008, police stopped Stotts for a traffic violation. After
a subsequent pat down search, Stotts fled from police. Shortly thereafter, he
was taken into custody. In the searches of his vehicle and apartment that
followed, police discovered approximately 3,500 grams of cocaine, 68.756 grams
of ecstasy, 1.46 grams of methamphetamine, 1 ketamine pill, 1.8 grams of 2,5-
dimethoxyphenethylamine, and a .45 caliber handgun from which the serial
number had been scratched off.
      Stotts was charged by way of a two count indictment. Count One charged
Stotts with conspiracy to possess with intent to distribute 5 kilograms or more
of cocaine. Count Two charged Stotts with possession of a firearm in furtherance
of a drug trafficking crime. Stotts entered into a written plea agreement with
the Government. He agreed to plead guilty to Count 1.          In exchange, the
Government dismissed Count 2 and agreed to bring no additional “non-tax-
related” charges based upon the same underlying conduct.
      In connection with his plea agreement, Stotts executed a statement of facts
in support of his plea. He admitted that he was the individual identified by the
indictment and that the offense conduct occurred in the Eastern District of
Texas. He admitted that he made an agreement to possess with intent to
distribute at least 15 kilograms of cocaine with one or more persons.         He
admitted that he knew the unlawful purpose of the agreement and that he joined
in it with the intent to further it. Finally, he admitted that the amount of
cocaine involved during the term of the conspiracy was greater than 15
kilograms of cocaine but less than 50 kilograms.
      When Stotts appeared in court to plead guilty, he again admitted to the
facts underlying the charges against him. In response to the district court’s
questioning, Stotts admitted that he “made an agreement to knowingly and
intentionally distribute and possess with intent to distribute at least 15

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kilograms but less than 50 kilograms of a mixture or substance containing
cocaine.” The district court asked whether Stotts “enter[ed] into an agreement
with someone else to possess with intent to distribute that quantity of cocaine,”
and Stotts responded, “Yes, sir.”      Stotts acknowledged that he knew the
agreement was unlawful when he joined it and that he participated with an
intent to further it. Finally, he admitted that the amount of cocaine involved in
the conspiracy in fact involved at least 15 kilograms of cocaine but less than 50
kilograms of cocaine.     Later, at sentencing, Stotts provided corroborating
evidence of his participation in the conspiracy when he explained that he had
provided police with his associates’ “street names” and telephone numbers and
that he had offered to assist in any way possible to help secure additional
arrests.
      Based on the stipulated facts in support of Stotts’s plea agreement and his
admissions in open court, the district court accepted Stotts’s plea. The court
subsequently sentenced Stotts to a term of 188 months in prison and five years
of supervised release. Stotts timely appealed.
                            II. Standard of Review
      Even a defendant who has validly waived his right to appeal may
challenge the factual basis underlying his guilty plea.         United States v.
Hildenbrand, 527 F.3d 466, 474 (5th Cir.), cert. denied, 129 S. Ct. 437 (2008).
This court considers the entire record of the proceedings in assessing whether
there is an adequate factual basis for a guilty plea. United States v. Vonn, 535
U.S. 55, 74 (2002). Because Stotts did not object to the sufficiency of the factual
basis underlying his plea in district court, however, we will only review for plain
error. United States v. Palmer, 456 F.3d 484, 489 (5th Cir. 2006). To establish
plain error, an appellant must show a forfeited error that was clear or obvious
and that affected his substantial rights. Puckett v. United States, 129 S. Ct.
1423, 1429 (2009). If the appellant makes such a showing, this court has the

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discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
                                     III. Discussion
       Stotts alleges that the district court lacked a sufficient factual basis to find
that he conspired with any other person in his scheme to possess with intent to
distribute more than 15 kilograms of cocaine.1 A district court cannot enter a
judgment of conviction based upon a guilty plea unless it is satisfied that there
is a factual basis for the plea. F ED. R. C RIM. P. 11(b)(3). The district court must
compare the conduct that the defendant admits with the elements of the offense
charged in the indictment or information. Hildenbrand, 527 F.3d at 474-75. The
factual basis for the guilty plea must be specific enough to allow the court to
determine that the defendant’s conduct constituted a crime. See United States
v. Castro-Trevino, 464 F.3d 536, 540 (5th Cir. 2006). In addition to the facts
adduced in the plea agreement and during the colloquy, this court may also
consider inferences “fairly drawn” from evidence presented after the plea but
before or at sentencing. Hildenbrand, 527 F.3d at 475. We conclude that Stotts
has not met the high burden necessary for a reversal under plain error review.
       Stotts admitted to engaging in specific factual conduct both in writing and
in open court that supported his guilty plea. He admitted he made an agreement
to sell drugs. He admitted that he knew the agreement was unlawful and that
he wanted to further it. He admitted that the conspiracy had in fact involved at
least 15 but less than 50 kilograms of cocaine. At sentencing, he sought a



       1
          Stotts also claims that the record does not support a finding that the conspiracy
involved at least 15 kilograms of cocaine. This claim of error is plainly without merit. First,
Stotts admitted to the amount of cocaine three separate times: (1) in the statement of facts in
support of plea; (2) when he admitted to the type of conspiracy he entered; and (3) when he
specifically conceded that the conspiracy had in fact involved between 15 and 50 kilograms of
cocaine. Second, the fact, as Stotts contends, that a lesser amount of cocaine was still in his
possession at the time of his arrest is not inconsistent with nor does it negate his factual
admissions as to quantity.

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reduction in his sentence based on information about drug activity that he had
provided to police—including his associates’ “street names”and telephone
numbers. A plea of guilty on a charge of conspiracy does not clearly or obviously
lack a factual basis merely because the district court fails to solicit the full legal
names of the co-conspirators or adduce separate evidence of intent beyond an
express confession as Stotts would have us hold.              Thus, the factual basis
underlying Stotts’s plea appears to have been adequate.
       Even if we were to assume arguendo that the district court clearly or
obviously erred, however, Stotts has failed to show how that error affected his
substantial rights. To prove a clear or obvious error affects substantial rights,
an appellant “must show a reasonable probability that, but for the error, he
would not have entered the plea.” Castro-Trevino, 464 F.3d at 541 (quoting
United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)). Stotts has made no
argument on appeal suggesting that it is reasonably probable he would have
pled not guilty but for the district court’s supposed error. Arguably, this failure
to brief waives his claim. See United States v. Torres-Coronado, 369 F. App’x
549, 550 (5th Cir. 2010) (unpublished).2
       Even if he had briefed it, however, Stotts would not have prevailed. He
stipulated to the underlying facts in writing then admitted under oath to that
same course of conduct in open court. Additionally, he admitted that he had
conferred with counsel to his satisfaction and he understood the charges against
him. Moreover, Stotts reaped substantial benefits by pleading guilty to Count
One to secure the dismissal of Count Two and the consecutive five-year
mandatory minimum sentence it would have carried.3                    Stotts’s unsworn


      2
         Although unpublished decisions are not precedent, they are cited for their factual
similarity and persuasive reasoning.
      3
        We acknowledge that the Supreme Court will hear the case of Gould v. United States,
130 S. Ct. 1283 (2010) (granting petition for certiorari), on October 4, 2010. Should the

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assertions in his pro se notice of appeal that he would not have pled guilty
simply do not rebut these repeated admissions and the clear benefit he derived
by pleading guilty. See United States v. Imeh, 291 F. App’x 637, 642 (5th Cir.
2008) (unpublished) (holding that a “bald assertion alone” is insufficient to show
a reasonable probability that the defendant would have pled not guilty but for
the district court’s error). Thus, Stotts has failed to show that any error on the
part of the district court affected his substantial rights.
                                     IV. Conclusion
       For the reasons set forth above, we AFFIRM Stotts’s conviction and
sentence.




petitioner prevail in that case, criminal defendants may no longer be subject to the additional
five-year mandatory minimum sentence imposed by 18 U.S.C. § 924(c). Section 924(c)
underlies the charge in Count 2 of Stotts’s indictment. Nonetheless, nothing about the
decision in Gould can affect what Stotts would have known or been subject to on the date he
decided to plead guilty—the only inquiry before us today.

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