     Case: 09-10057     Document: 00511090455          Page: 1    Date Filed: 04/23/2010




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

                                                  FILED
                                                                            April 23, 2010
                                     No. 09-10057
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

ROBERT LOUIS HAWKINS,

                                                   Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                           USDC No. 3:07-CR-304-ALL


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Robert Louis Hawkins pleaded guilty to possessing a firearm with an
obliterated serial number, in violation of 18 U.S.C. § 922(k), and he was
sentenced to 60 months in prison.             Hawkins contends that he was denied
effective assistance of counsel when counsel abandoned meritorious objections
to the guidelines calculations in favor of an alternative calculation of the
guideline range. He also contends that the sentence-appeal waiver in his plea
agreement should not be enforced and that his sentence is unreasonable because

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10057    Document: 00511090455 Page: 2        Date Filed: 04/23/2010
                                 No. 09-10057

the district court applied a presumption of reasonableness to a within-guidelines
sentence and failed to properly consider relevant mitigating factors. We need
not reach these issues.
      Hawkins argues that his guilty plea was not voluntary because he was not
informed of and did not understand every element of the offense and because the
factual basis was insufficient to prove every element of the offense. Because
Hawkins did not raise this issue in district court, review is only for plain error.
See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
      The list of elements of the § 922(k) offense in Hawkins’s factual resume
failed to include the element of the defendant’s knowledge of the obliteration or
alteration of the serial number, and the district court did not inform Hawkins
of this element of the offense. See United States v. Johnson, 381 F.3d 506, 508
(5th Cir. 2004); see also United States v. Hooker, 997 F.2d 67, 74 (5th Cir. 1993)
(describing this as a “crucial element” of a § 922(k) offense). By not informing
Hawkins of this crucial element of the offense, the district court erred by failing
to inform Hawkins of, and ensuring that he understood, the nature of the charge,
in violation of Federal Rule of Criminal Procedure 11(b)(1)(G). Additionally, the
district court erred in accepting Hawkins’s guilty plea because there was an
insufficient factual basis to support Hawkins’s guilty plea as to this element of
the offense. See F ED. R. C RIM. P. 11(b)(3); United States v. Adams, 961 F.2d 505,
508 (5th Cir. 1992) (“The factual basis cannot be implied from the fact that the
defendant entered a plea, but must appear on the face of the record and ‘must
be precise enough and sufficiently specific’ to demonstrate that the accused
committed the charged criminal offense.”) (quoting United States v. Johnson, 546
F.2d 1225, 1226 (5th Cir. 1977)). In light of the record as a whole and Johnson
and Hooker, these errors are clear or obvious.
      Further, these errors affected Hawkins’s substantial rights. See United
States v. Dominguez Benitez, 542 U.S. 74, 80-83 (2004); see also Marshall v.
Lonberger, 459 U.S. 422, 431 (1983) (“A guilty plea . . . cannot be truly voluntary

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                                 No. 09-10057

if the defendant ‘has such an incomplete understanding of the charge that his
plea cannot stand as an intelligent admission of guilt.’” (quoting Henderson v.
Morgan, 426 U.S. 637, 645 n.13 (1941))). The Government’s argument that the
error did not affect Hawkins’s substantial rights because he reaped the benefit
of avoiding prosecution and a higher sentence on the original indictment is
disingenuous in light of its ex parte letter to the district court in support of the
plea agreement.
      We find it appropriate to exercise our discretion to correct this error in this
case. See Puckett, 129 S. Ct. at 1429. Accordingly, Hawkins’s § 922(k) conviction
is VACATED, and this matter is REMANDED for entry of a new plea. See
United States v. Hall, 110 F.3d 1155, 1162 (5th Cir. 1997). Reversing on this
ground, we need not reach Hawkins’s other claims.




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