     Case: 11-50966     Document: 00511959158         Page: 1     Date Filed: 08/16/2012




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

                                                                            FILED
                                                                          August 16, 2012
                                     No. 11-50966
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LAURO JAVIER ESTRADA, also known as Borrego,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:10-CR-1483


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Lauro Javier Estrada appeals his guilty plea conviction for conspiracy to
possess with intent to distribute 1,000 kilograms or more of marijuana. He
argues that the district court plainly erred by accepting his guilty plea because
there was an insufficient factual basis to support the element of the offense that
the conspiracy involved 1,000 kilograms or more of marijuana inasmuch as the
Government stipulated that Estrada was responsible for less than 1,000
kilograms of marijuana.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50966

      While Estrada moved to withdraw his guilty plea, he did not argue in the
district court that there was an insufficient factual basis for the guilty plea.
Accordingly, Estrada failed to preserve this issue for review. See United States
v. Dunigan, 555 F.3d 501, 506 (5th Cir. 2009). Although Estrada arguably
invited or waived the alleged error, out of an abundance of caution, we review
the issue for plain error. See United States v. Fernandez-Cusco, 447 F.3d 382,
384 (5th Cir. 2006).
      A district court cannot enter a judgment of conviction based upon a guilty
plea unless it is satisfied that there is a factual basis for the plea. FED. R. CRIM.
P. 11(b)(3). The district court is required “to determine that the factual conduct
to which the defendant admits is sufficient as a matter of law to constitute a
violation of the statute.” United States v. Marek, 238 F.3d 310, 314 (5th Cir.
2001) (en banc). “[I]nferences may be ‘fairly drawn’ from the evidence adduced
after the acceptance of a guilty plea but before or at sentencing.” United States
v. Hildenbrand, 527 F.3d 466, 475 (5th Cir. 2008). Thus, the presentence report
(PSR), which was adopted by the district court, may be considered. See id.
      In a written factual basis, Estrada admitted that he and others “conspired
to possess with the intent to distribute 1,000 kilograms or more of marijuana.”
He further admitted that he assisted with an operation to transport a load of
marijuana that weighed approximately 2,500 pounds, which is approximately
1,133 kilograms. In the PSR, the probation officer reported that the gross
weight of the marijuana was 1,114.2 kilograms. Thus, without considering the
stipulation to the contrary, Estrada’s admissions contained sufficient facts from
which the district court could find that the offense involved 1,000 kilograms or
more of marijuana. See id. at 479.
      Estrada’s plea agreement and written factual basis included a stipulation
that Estrada was responsible for less than 1,000 kilograms of marijuana,
arguably contradicting Estrada’s admissions that he conspired to possess with
intent to distribute 1,000 kilograms or more of marijuana. The parties cite to no

                                         2
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                                 No. 11-50966

authority concerning whether a contradictory stipulation can negate a factual
basis that is otherwise sufficient. As this is an issue of first impression, any
error in accepting Estrada’s guilty plea was not plain error. See United States
v. Rodriguez-Parra, 581 F.3d 227, 230 (5th Cir. 2009); United States v. Hull, 160
F.3d 265, 272 (5th Cir. 1998).
      AFFIRMED.




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