     Case: 12-40622       Document: 00512244235         Page: 1     Date Filed: 05/16/2013




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

                                                                            FILED
                                                                           May 16, 2013
                                     No. 12-40622
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

RHONDA RAQUEL REYES,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 1:10-CR-1119-4


Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
       Rhonda Raquel Reyes was convicted on one count of conspiring to possess,
with the intent to distribute, 100 kilograms or more of marijuana, in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and 846. At a bench trial, at which Reyes
testified, the evidence showed she rented a truck to transport a large quantity
of marijuana. She was thereafter sentenced to 63 months’ imprisonment. She
challenges: the district court’s rejecting her guilty plea; and its declining to



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40622

reduce her offense level based on the safety valve provision in the Sentencing
Guidelines, U.S.S.G. § 5C1.2(a).
      In asserting reversible error when the court rejected her guilty plea, Reyes
contends that, during the rearraignment hearing, she admitted facts sufficient
to prove she was guilty of conspiracy, including willful blindness to the rented
truck’s being used to transport drugs. Because Reyes failed to object to the
court’s rejecting her guilty plea, review is only for plain error. See, e.g., United
States v. Foy, 28 F.3d 464, 471-72 (5th Cir. 1994). No authority need be cited for
Reyes’ being required, inter alia, to show “clear” or “obvious” error for showing
reversible plain error under the well known standard of review.
      Defendant does not have an absolute right to have a trial court accept her
guilty plea. Santobello v. New York, 404 U.S. 257, 262 (1971). Under Federal
Rule of Criminal Procedure 11, a district court must ensure, inter alia: a guilty
plea is knowing and voluntary; and there exists a factual basis for the plea. FED.
R. CRIM. P. 11(b). For defendant to be found guilty of conspiring to possess with
intent to distribute drugs, there must be: “(1) an agreement existed between two
or more persons to violate federal narcotics law, (2) the defendant knew of the
existence of the agreement, and (3) the defendant voluntarily participated in the
conspiracy”. United States v. Thomas, 690 F.3d 358, 366 (5th Cir. 2012), cert.
denied, 133 S. Ct. 1281 (2013).
      At the rearraignment hearing, Reyes disputed several aspects of the
proffered factual basis. She stated repeatedly she rented the truck as a favor for
a friend and did not consider how the truck would be used. Although Reyes
admitted she had “an idea” her friend was a drug trafficker because of the people
with whom he socialized and the amount of money he spent, she also stated she
did not become suspicious of the reason he requested she rent the truck until she
handed over the keys. Reyes further explained she and the man often did favors
for each other. In this context, there was a basis for the court to conclude Reyes
was not knowingly and voluntarily pleading guilty because the facts she

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                                   No. 12-40622

admitted were not sufficient to prove she knew of an agreement to violate the
drug laws and that she voluntarily participated in the conspiracy. See United
States v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010); United States v. Martinez, 486
F.2d 15, 20 (5th Cir. 1973). There was no error, plain or otherwise, in rejecting
the guilty plea.
      Reyes next contends the court improperly determined she was ineligible
for a reduction in her offense level based on Guideline §§ 5C1.2(a), 2D1.1(b)(16),
the “safety valve”.    Although post-Booker, the Sentencing Guidelines are
advisory only, and a properly preserved objection to an ultimate sentence is
reviewed for reasonableness under an abuse-of-discretion standard, the district
court must still properly calculate the Guideline-sentencing range for use in
deciding on the sentence to impose. Gall v. United States, 552 U.S. 38, 48-51
(2007). In that respect, for issues preserved in district court, its application of
the Guidelines is reviewed de novo; its factual findings, only for clear error. E.g.,
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United
States v. Villegas, 404 F.3d 355, 359 (5th Cir. 2005).
      Assuming Reyes preserved this issue in district court, the court did not
clearly err in finding Reyes had not truthfully provided the Government with all
information she had concerning the offense because the finding is plausible in
the light of the record as a whole. E.g., United States v. Edwards, 65 F.3d 430,
433 (5th Cir. 1995). The court’s finding her guilty also weighs against applying
the safety valve. E.g., United States v. Moreno-Gonzalez, 662 F.3d 369, 375 (5th
Cir. 2011).
      AFFIRMED.




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