     Case: 12-50546       Document: 00512214261         Page: 1     Date Filed: 04/19/2013




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

                                                                            FILED
                                                                           April 19, 2013
                                     No. 12-50546
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

v.

RAYMOND SAMUELS,

                                                  Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:11-CR-410-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Raymond Samuels pleaded guilty to one count of wire fraud in violation
of 18 U.S.C. § 1343 and received a within-guidelines sentence of 12 months and
one day in prison and a three-year term of supervised release. He was also
ordered to pay $55,000 in restitution. Samuels argues that the district court
erred by accepting his guilty plea because the factual basis offered in support of
the plea does not establish that the wire communication alleged in the



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50546

indictment—a facsimile (fax) of an invoice to Osborne Cast & Bearing—was
transmitted for the purpose of executing his scheme to defraud.
       As Samuels concedes, because he did not object to the sufficiency of the
factual basis underlying his plea in district court, this court will review the issue
for plain error only. See United States v. Palmer, 456 F.3d 484, 489 (5th Cir.
2006); United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001) (en banc). To
establish plain error, an appellant must show that the forfeited error is clear or
obvious and that it affects his substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009). If the appellant makes such a showing, this court has the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
       A district court cannot enter a judgment of conviction based upon a guilty
plea unless the court is satisfied that there is a factual basis for the plea. FED.
R. CRIM . 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.
United States v. Hildenbrand, 527 F.3d 466, 474-75 (5th Cir. 2008).                     “To
establish wire fraud, the government must prove (1) that the defendant
knowingly participated in a scheme to defraud; (2) that interstate wire
communications were used to further the scheme; and (3) that the defendant
intended that some harm result from the fraud.” United States v. Mills, 199
F.3d 184, 188 (5th Cir. 1999) (per curiam). “Though the federal fraud statute
requires more than a tangential relationship between the wire communication
and the fraud, [i]t is sufficient for the mailing to be incident to an essential part
of the scheme or a step in [the] plot.” United States v. Phipps, 595 F.3d 243, 246
(5th Cir. 2010) (alterations in original) (internal quotation marks omitted).1




       1
       “[B]ecause the mail and wire fraud statutes share the same language in relevant part,
the same analysis applies to each.” Mills, 199 F.3d at 188.

                                             2
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                                  No. 12-50546

      Samuels contends that the record reflects that the fax was sent after he
received payment from Osborne Cast & Bearing for the pumping unit, and
therefore the facts do not establish that the interstate wire communication was
transmitted for the purpose of executing his scheme to defraud as required for
a conviction under § 1343. Although neither the indictment nor the factual basis
explicitly stated that the invoice was sent by fax prior to payment, the district
court was entitled to draw inferences from the evidence presented.              See
Hildenbrand, 527 F.3d at 475. The indictment and the factual basis support a
determination that Samuels sent the invoice by fax prior to any payment by
Osborne Cast & Bearing and, thus, that the wire communication was “incident
to an essential part of the scheme or a step in [the] plot.” Phipps, 595 F.3d
at 246 (alteration in original) (internal quotation mark omitted).
      As Samuels asserts, the presentence investigation report (PSR) reflects
that Chad Osborne, with Osborne Cast & Bearing, provided Tammy McComic
of Mexco Energy Corporation with an invoice from Samuels for payment of
$40,000 received from Osborne Cast & Bearing. However, that portion of the
PSR does not identify the date the invoice was paid. Nevertheless, because a
subsequent paragraph of the PSR reflects that Osborne Cast & Bearing wired
payments to Samuels’s bank account after the December 29, 2009, transmission
of the fax (as alleged in the indictment and set forth in the factual basis), it can
be inferred that the fax alleged in the indictment was transmitted prior to
Osborne Cast & Bearing’s payments to Samuels for the pumping unit.
      An examination of the record reveals that the district court did not plainly
err in determining that Samuels’s conduct satisfied the requirement that the
wire communication—the fax transmitting the invoice—be transmitted “for the
purpose of executing” Samuels’s scheme to defraud. § 1343; Phipps, 595 F.3d
at 246; Puckett, 556 U.S. at 135. Any deficiency in the factual basis is not “so
clear or obvious that the trial judge and prosecutor were derelict in
countenancing it, even absent the defendant’s timely assistance in detecting it.”

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                                No. 12-50546

United States v. Gonzalez-Rodriguez, 621 F.3d 354, 363 (5th Cir. 2010) (quoting
United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010)) (internal quotation
marks omitted).
      Because Samuels has not shown plain error in connection with his
challenge to his conviction, the district court’s judgment is AFFIRMED.




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