                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 08-4881


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANDRES WILFREDO TORRIENTE,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:07-cr-01363-HFF-2)


Submitted:   March 10, 2010                   Decided:   May 14, 2010


Before MICHAEL, 1 SHEDD, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Covington,
Kentucky, for Appellant. W. Walter Wilkins, United States
Attorney, Leesa Washington, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.


     1
       Judge Michael was a member of the original panel but did
not participate in this decision. This opinion is filed by a
quorum of the panel pursuant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

            Andres Wilfredo Torriente appeals from his conviction

and 240-month sentence entered pursuant to his guilty plea to

conspiracy     to    possess     with     intent      to     distribute   and    to

distribute cocaine.        On appeal, Torriente challenges the Fed. R.

Crim. P. 11 hearing, the voluntariness of his plea, and his

statutory mandatory minimum sentence.              We affirm.



                                        I.

            Torriente      first    contends       that      the    factual   basis

established was insufficient to support his guilty plea because

it showed only that Torriente knew of the drug conspiracy; it

failed to show that he participated in it.                     Fed. R. Crim. P.

11(b)(3) provides that “[b]efore entering judgment on a guilty

plea, the court must determine that there is a factual basis for

the plea.”     The rule is “intended to ensure that the court make

clear    exactly    what   a   defendant     admits    to,    and   whether   those

admissions are factually sufficient to constitute the alleged

crime,” and it “is designed to protect a defendant who is in the

position of pleading voluntarily with an understanding of the

nature of the charge but without realizing that his conduct does

not     actually    fall   within   the      charge.”         United    States   v.

Mastrapa, 509 F.3d 652, 659-60 (4th Cir. 2007).



                                        3
               “It is ‘well settled that a defendant may raise on

direct appeal the failure of a district court to develop on the

record a factual basis for a plea.’”                       United States v. Ketchum,

550 F.3d 363, 366 (4th Cir. 2008) (quoting United States v.

Mitchell, 104 F.3d 649, 652 n.2 (4th Cir. 1997)).                               In making a

Rule 11(b)(3) determination, the district court possesses wide

discretion and is not required to replicate the trial that the

parties sought to avoid or to rely only on the Rule 11 plea

colloquy,      but     may    conclude    that    a       factual      basis    exists    from

anything    that       appears    on   the    record.           Ketchum,       550   F.3d    at

366-67; see also United States v. Martinez, 277 F.3d 517, 531-32

(4th Cir. 2002) (explaining that a sentencing court may consider

the presentence report (“PSR”) as a source of the factual basis

to establish the crime, so long as the PSR is made part of the

record on appeal); United States v. DeFusco, 949 F.2d 114, 120

(4th    Cir.    1991)        (noting   that    Rule       11    does    not     require     the

district court to establish through its colloquy that a factual

basis exists for the plea).

               Here,    the     PSR    included       a    summary       of    Michael      Roy

Essex’s statement that Torriente was involved in the scheme to

transport cocaine, that he introduced Essex to other members of

the    conspiracy,       and    that     he   profited         from    the     conspirators’

cocaine sales.           In addition, the PSR included circumstantial

evidence further supporting the factual basis, specifically that

                                              4
Torriente paid for a hotel room during a drug-related trip and

that digital scales were found in his home.                  In fact, at the

hearing on Torriente’s motion to withdraw, counsel admitted that

there was a factual basis when she noted that Essex “put Mr.

Torriente [as] a primary player in the drug transaction that he

was   involved   in.”     This   evidence,       combined    with   Torriente’s

admissions that he knew the purpose of the trip, are sufficient

to establish a factual basis.          Accordingly, we find that there

was no Rule 11 error when the court found a factual basis for

Torriente’s plea.



                                      II.

            Torriente next argues that the district court violated

Rule 11 by misstating the elements of the conspiracy charge.

According to Torriente, the district court’s recitation of the

elements    confused    the   crime    of    possession      with   intent    to

distribute with the charged conspiracy.             The elements of a drug

conspiracy are as follows:       (1) an agreement to violate the drug

laws existed between two or more persons, (2) the defendant knew

of    the   conspiracy,    and   (3)       the   defendant     knowingly     and

voluntarily became a part of the conspiracy.                 United States v.

Burgos, 94 F.3d 849, 857 (4th Cir. 1996) (en banc).                 Torriente’s

indictment specifically alleged that the conspirators agreed to



                                       5
violate the drug laws by possessing with intent to distribute or

distributing five kilograms or more of cocaine and marijuana. 2

              Our review of the record discloses that the district

court’s description of the elements of the offense sufficiently

matched the charged crime.                In fact, Torriente was informed of

his crime in more specificity than the bare bones conspiracy

elements.          The   court    correctly,     but    unnecessarily,         explained

that he could be held responsible for the conspiracy’s actions

whether he directly participated in the distribution alleged or

whether      the    distribution      was    merely     foreseeable       to    him    and

within the scope of his agreement.                  See United States v. Brooks,

524   F.3d    549,       557-58    n.16   (4th   Cir.)       (noting    that    acts       in

furtherance        of     a   conspiracy      are     attributable        to   all        the

conspirators        when      those   acts   are      reasonably       foreseen      as    a

necessary     or     natural      consequence    of    the    unlawful     agreement),

cert. denied, 129 S. Ct. 519 (2008).                    To the extent the court

stated the elements in more specific detail than required or

outlined in the indictment, or even if the court’s description

described      more      proof    than    required     by    law,   the    court      also

covered all the elements of a conspiracy.                     Torriente’s assertion

      2
       The district court misread one of the words in the
indictment during the Rule 11 hearing, essentially stating that
the Government had to prove that the conspiracy distributed
cocaine.     However,   this  mistake   increased, rather  than
decreased, the burden on the Government.



                                             6
that he would not have pleaded guilty had the court provided

less detail or stated that the Government’s burden was easier is

illogical.   Accordingly, we find no reversible error. 3



                                  III.

          Torriente    contends        that    his     plea     was      not

constitutionally   valid   because       it   was    not    voluntary    or

intelligent given the alleged errors addressed above, as well as

the fact that Torriente was never actually asked to enter a

plea.    The standard for determining whether a guilty plea is

constitutionally   valid   is   whether       the    plea   represents    a

voluntary and intelligent choice among the alternative courses

of action open to the defendant.         Burket v. Angelone, 208 F.3d

172, 190 (4th Cir. 2000).       In applying this standard, courts




     3
       Torriente also contends that the district court erred by
failing to mention marijuana in its description of the elements,
even though it was charged in the indictment. However, when an
indictment charges in the conjunctive several means of violating
a statute, a conviction may be obtained on proof of only one of
the means. United States v. Simpson, 228 F.3d 1294, 1300 (11th
Cir. 2000).     Thus, again, the district court’s failure to
mention marijuana inured to Torriente’s benefit. While it would
have been more correct to state that the Government had to prove
that either cocaine or marijuana was involved in the conspiracy,
Torriente pled guilty after hearing the court state that the
Government was required to prove cocaine.    Any allegation that
Torriente would not have pled guilty had he known that the
Government could prove cocaine or marijuana is frivolous.



                                   7
look to the totality of the circumstances surrounding the plea.

Id.

            As discussed above, there was no reversible error in

either    the    court’s     acceptance          of   the   factual        basis     or   the

court’s recitation of the elements of the offense.                              Moreover,

even were there error, it was not constitutionally significant

because it is clear that Torriente made a reasoned choice to

plead guilty in light of Essex’s expected testimony.                                Prior to

his appeal, Torriente never expressed any confusion as to the

import of the guilty plea, or the consequences thereof.

            Regarding        the      court’s         failure       to     actually       ask

Torriente to enter a plea, Torriente is correct that the record

is devoid of any explicit plea.                       However, it is clear that

Torriente understood he was pleading guilty, intended to plead

guilty, and believed that he had pled guilty, as did the court

and   the   Government.          In    response        to   the     court’s     question,

Torriente   stated      that     he   was      pleading     guilty        because    he   was

guilty of the crime.           In his motion to withdraw his guilty plea,

Torriente       never   argued     that     he    had    not       pled    guilty,     never

expressed confusion about the guilty plea proceeding, and in

fact,    proceeded      to   attempt      to     withdraw      a    plea    that     he   now

contends he never entered.                Thus, while the court could have

been more thorough in its colloquy with Torriente, the totality

of the circumstances makes it clear that Torriente pled guilty

                                            8
knowingly and voluntarily in order to avoid a harsher sentence

based    on     Essex’s     testimony.             Accordingly,          there    was     no

constitutional error.



                                             IV.

              Next, Torriente contends that the district court erred

by denying his motion to withdraw his plea.                       We review a denial

of   a   motion      to    withdraw      a    guilty      plea     for    an     abuse    of

discretion.         United States v. Ubakanma, 215 F.3d 421, 424 (4th

Cir. 2000).         A defendant bears the burden of demonstrating to

the district court’s satisfaction that a “fair and just reason”

supports his request to withdraw.                  Fed. R. Crim. P. 11(h).

              In    determining    whether         the    trial    court       abused    its

discretion in denying a motion to withdraw a guilty plea, this

court considers the six factors articulated in United States v.

Moore, 931 F.2d 245, 248 (4th Cir. 1991).                        The factors include,

whether: (1) the defendant has offered credible evidence that

his plea was not knowing or not voluntary; (2) the defendant has

credibly      asserted     his   legal       innocence;     (3)    there    has    been    a

delay between the entering of the plea and the filing of the

motion; (4) the defendant has had close assistance of competent

counsel;      (5)    the    withdrawal         will      cause    prejudice       to     the

government; and (6) the withdrawal will inconvenience the court

and waste judicial resources.                Id.

                                              9
          As discussed above, although Torriente has identified

some questionable areas of the Rule 11 hearing, he has offered

no evidence that his plea was not knowing or voluntary, and he

has not credibly asserted his legal innocence. 4   While there did

not appear to be undue delay, Torriente indisputably had close

assistance of counsel. 5   Finally, the district court reasonably

found that withdrawal of Torriente’s plea would inconvenience

the court and waste judicial resources.    Accordingly, there was

no abuse of discretion in denying the motion.




     4
       Torriente based his motion to withdraw on the assertion
that Essex had recanted his statement implicating Torriente. It
is difficult to believe that Torriente was pleading guilty
solely based on Essex’s allegedly unreliable statement, as
Essex’s incriminating statement was made after he gave a
conflicting statement stating that Torriente was not involved.
Torriente’s assertion that he pled guilty because he feared
Essex would give false testimony against him is undermined by
the fact that he could have cross-examined Essex with his prior,
inconsistent   statement.    Essex’s   recantation   (his  third
statement) is the only “evidence” Torriente submits in support
of his innocence.
     5
        After recognizing that this factor weighed in the
Government’s favor, Torriente makes a weak argument that his
attorney misled him into believing he was guilty of conspiracy
merely for getting into the car with his co-defendants.     This
claim is raised for the first time on appeal and, thus, does not
affect our determination of whether the district court abused
its discretion.



                                10
                                        V.

            Finally, Torriente contends that a sentence below the

statutorily required minimum would have served the purposes of

sentencing    and   that     the    district    court     erred    in   failing   to

impose a lower sentence.              However, “[a] statutorily required

sentence . . . is per se reasonable.”              United States v. Farrior,

535 F.3d 210, 224 (4th Cir.), cert. denied, 129 S. Ct. 743

(2008).      Moreover,     the     district    court    had   no    discretion    to

impose a sentence outside the statutory range.                    United States v.

Robinson, 404 F.3d 850, 862 (4th Cir. 2005).                        As such, this

claim is frivolous.

            Based     on     the    foregoing,      we     affirm       Torriente’s

conviction and sentence.           We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials    before    the    court    and     argument    would     not   aid    the

decisional process.

                                                                           AFFIRMED




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