     Case: 13-51029         Document: 00512967148         Page: 1     Date Filed: 03/12/2015




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

                                        No. 13-51029
                                                                                       Fifth Circuit

                                                                                      FILED
                                                                               March 12, 2015

UNITED STATES OF AMERICA,                                                       Lyle W. Cayce
                                                                                     Clerk
                                                    Plaintiff-Appellee

v.

ROBERT A. WARGO, JR., also known as Bobby Wargo,
also known as Robert Jones,

                                                    Defendant-Appellant


                    Appeals from the United States District Court
                          for the Western District of Texas
                               USDC No. 1:11-CR-258


Before JONES and HAYNES, Circuit Judges, and CRONE, District Judge. *
PER CURIAM: **
      Robert A. Wargo (“Wargo”) appeals his conviction for conspiracy to
commit mail and wire fraud, 130-month sentence of imprisonment, and
$5,243,488.49 order of restitution.               He argues that the district court
committed error by: (1) failing to advise him of certain rights as required by
Rule 11 of the Federal Rules of Criminal Procedure; (2) violating the


      *   District Judge for the Eastern District of Texas, sitting by designation.

      ** 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not be published and is not precedent except under the limited circumstances set forth in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. 13-51029

Criminal Justice Act (“CJA”) by failing to inquire into his financial condition;
and (3) denying his Sixth Amendment right to counsel of his choice.
                                       I.
      On May 5, 2011, Wargo was charged by Indictment with conspiracy to
commit mail and wire fraud in violation of 18 U.S.C. §§ 1349, 1341, and 1343,
aiding and abetting mail fraud and wire fraud in violation of 18 U.S.C. §§
1341 and 2, and conspiracy to launder monetary instruments in violation of
18 U.S.C. § 1956(h). On May 19, 2011, Wargo was arrested in the Southern
District of Florida. The following day, Wargo made his initial appearance
before United States Magistrate Judge Linnea R. Johnson, who advised
Wargo of his rights in accordance with Rule 5 of the Federal Rules of
Criminal Procedure and found Wargo to be indigent. At that time, a federal
public defender was appointed to represent Wargo in this case. With the
advice of counsel, Wargo waived his right to a hearing in accordance with
Rule 40 of the Federal Rules of Criminal Procedure and was committed to the
custody of the United States Marshal for removal to the Western District of
Texas. Shortly thereafter, Wargo retained counsel.
      At the plea hearing on August 19, 2011, during which Wargo was
represented by retained counsel, United States Magistrate Judge Robert
Pitman advised Wargo of the rights set forth in Rule 11 of the Federal Rules
of Criminal Procedure but did not specifically advise him of the right to be
represented by court-appointed counsel. Wargo pleaded guilty to Count 1 of
the Indictment, and Judge Pitman recommended acceptance of the plea.
United States District Judge Sam Sparks accepted the plea and plea
agreement on October 31, 2011, sentenced Wargo to 130 months’
imprisonment, and ordered him to pay restitution in the amount of
$5,243,488.49.



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                                        II.
      Wargo first asks this court to overturn his guilty plea, contending that
he was unaware of his right to appointed counsel and would not have pleaded
guilty had he been informed of this right during the plea hearing. Because
Wargo did not raise this issue in the district court, we review for plain error.
FED. R. CRIM. P. 52(b) (“A plain error that affects substantial rights may be
considered even though it was not brought to the court’s attention.”); United
States v. Vonn, 535 U.S. 55, 59 (2002). If Wargo establishes (1) error, (2) that
is plain, and (3) that affects his substantial rights, we proceed to the fourth
prong, which affords us “the discretion to remedy the error—discretion which
ought to be exercised only if the error seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.” Puckett v. United States, 556
U.S. 129, 135 (2009) (internal quotation marks omitted); United States v.
Olano, 507 U.S. 725, 732 (1993).
      Assuming arguendo that Wargo has satisfied the first two prongs of the
plain error analysis, he has not met the third prong because he fails to show
a “reasonable probability that, but for the error, he would not have entered
the plea.”   United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
During his guilty plea colloquy on August 19, 2011, Wargo unequivocally and
repeatedly admitted his guilt. In the context of a guilty plea, a defendant’s
“[s]olemn declarations in open court carry a strong presumption of verity.”
Blackledge v. Allison, 431 U.S. 63, 74 (1977). Further, the record reveals that
Wargo was well aware of his right to appointed counsel notwithstanding any
omission by Judge Pitman. With the assistance of appointed counsel, Wargo
signed a Waiver of Rule 40 Hearings on May 20, 2011, in which he
acknowledged that he had been informed of the charges against him and that
he had the right to “retain counsel or request the assignment of counsel if [he



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is] unable to retain counsel.” These facts belie his assertion that he was
unaware of his right to appointed counsel.
      Accordingly, we conclude that there is no “reasonable probability that,
but for the error, he would not have entered the plea.” Dominguez Benitez,
542 U.S. at 83. Any omission under Rule 11(b)(1)(D) did not, therefore, affect
Wargo’s substantial rights. See United States v. Saucedo-Rios, 439 F. App’x
316, 317 (5th Cir. 2011).
      Wargo next argues that his plea was unknowing and involuntary
because the district court did not advise him under Rule 11(b)(1)(G) of the
nature of his offense or ensure that there was an adequate factual basis for
the plea as required under Rule 11(b)(3). Because Wargo did not raise this
issue in the district court, we review for plain error.
      Wargo observes that he was not informed at the plea hearing that the
government was required to prove that he intended to further a scheme to
defraud. The record, however, shows that he understood that an element of
the conspiracy was the intent to defraud the victims.         Count One of the
Indictment states:
      “Defendant[] . . . ROBERT A. WARGO . . . did unlawfully,
      knowingly, and willfully combine, conspire, confederate, and
      agree together and with each other and with others known and
      unknown . . . to knowingly devise or intend to devise a scheme or
      artifice to defraud investors and/or to obtain money or property
      by means of false or fraudulent pretenses, representations, or
      promises . . . .”
Further, during the plea hearing, Wargo’s attorney acknowledged that Wargo
“knowingly and intentionally entered a conspiracy in violation of [the] laws of
the United States to commit . . . wire and mail fraud.” Thus, Wargo fails to
show that he would not have entered a guilty plea but for the omission; his
substantial rights were not affected and there is no plain error. See Puckett,
556 U.S. at 135.

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      Regarding Wargo’s assertion that there was no adequate factual basis
for the plea as required under Rule 11(b)(1)(G), the court is not limited on
plain error review to the defendant’s admissions to determine whether there
was a sufficient factual basis. United States v. Trejo, 610 F.3d 308, 317 (5th
Cir. 2010). Instead, it considers the entire record, including the plea colloquy,
the plea agreement, the Presentence Investigation Report (“PSR”), and
“‘fairly drawn’ inferences from the evidence presented both post-plea and at
the sentencing hearing.” Id. (citing United States v. Palmer, 456 F.3d 484,
489 (5th Cir. 2006)).
      Here, the Indictment is comprehensive and spans forty-four pages. It
recounts Wargo’s charged conduct in detail and, thus, is sufficiently specific
to stand alone as the sole source of the factual basis for a guilty plea. United
States v. Garcia-Paulin, 627 F.3d 127, 133 (5th Cir. 2010) (“If sufficiently
specific, an indictment or information can be used as the sole source of the
factual basis for a guilty plea.”). Moreover, Wargo did not object to the facts
contained in the PSR, which outlined Wargo’s illegal conduct and was
adopted by the district court without change. Accordingly, Wargo’s assertion
that the factual basis was insufficient to support his plea is unsupported by
the record as a whole.
      Moreover, under all of these circumstances, the district court was not
required by the CJA to make an inquiry into Wargo’s financial eligibility. See
18 U.S.C. § 3006A(c). Under our precedent, “[o]nce a defendant has been
informed of the right to appointed counsel, it is incumbent upon the
defendant to notify the court of his desire to have counsel appointed because
of his financial inability to obtain counsel.” United States v. Foster, 867 F.2d
838, 841 (5th Cir. 1989). Wargo argues that his retained counsels’ motions to
withdraw or be appointed as CJA counsel (which were filed without his



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knowledge) triggered the court’s obligation. Even if true, however, the court
denied    counsels’      request,   and   they       continued   to   represent    him
conscientiously. Only six weeks later, he pled guilty, knowing and admitting
he was guilty, under a favorable plea agreement they negotiated. Indeed,
after pleading guilty, Wargo wrote a letter to his attorneys, stating that he
felt “extremely fortunate to have [them] on [his] team,” and was “counting on
them for their assistance in upcoming proceedings.” The record offers no
support for a conclusion that a different handling of the CJA request would
have been beneficial to Wargo.
      Finally, Wargo argues that the district court violated his Sixth
Amendment right to counsel of his choice by failing to inform him of his right
to appointed counsel. For the reasons set forth above, Wargo’s argument is
unavailing; indeed, he was represented throughout by the counsel he had
chosen and retained. See United States v. Hughey, 147 F.3d 423, 428 (5th
Cir. 1998) (“[T]his is not a case in which the district court’s action resulted in
the defendant being forced to trial with an inadequately prepared attorney or
no attorney at all.”).
                                              III.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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