     Case: 10-41033     Document: 00511518857          Page: 1    Date Filed: 06/23/2011




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

                                                 FILED
                                                                            June 23, 2011
                                     No. 10-41033
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ELTON A. GUTURA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 4:10-CR-35-1


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
        Pursuant to a written plea agreement, Elton A. Gutura pleaded guilty to
one count of conspiracy to defraud the United States, in violation of 18 U.S.C.
§ 371. His plea agreement contained an appellate waiver wherein he waived his
right to appeal or to attack collaterally his conviction and sentence, with the
exception of (1) any punishment that exceeded the statutory maximum and (2) a
claim of ineffective assistance of counsel that affected that validity of the waiver
or the plea itself.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-41033

      Gutura now argues that his guilty plea was invalid because there was an
insufficient factual basis in support of his plea. He specifically asserts that he
made statements at sentencing indicating that he lacked the requisite intent for
the offense of conviction. Gutura alleges that his assertions of innocence at
sentencing entitle him to a reversal of his conviction and an opportunity to
withdraw his guilty plea.
      Although Gutura ostensibly contends that the factual basis was
insufficient to support his plea, he provides no argument in this regard. He does
not identify the elements of the offense of conviction, assert that the factual basis
that appears in the record is not specific enough to allow the court to determine
whether his conduct violated the statute of conviction, or address the legal
sufficiency of the facts to which he admitted.              See United States v.
Castro-Trevino, 464 F.3d 536, 540 (5th Cir. 2006); United States v. Marek, 238
F.3d 310, 315 (5th Cir. 2001).
      To the extent that Gutura does contest the sufficiency of the factual basis,
a claim that we may consider despite the appeal waiver, see United States v.
Hildenbrand, 527 F.3d 466, 474 (5th Cir. 2008), he has not shown that the
district court plainly erred in finding that the factual basis was sufficient to
support his plea. See Castro-Trevino, 464 F.3d at 540 (applying plain-error
review to a challenge to sufficiency of a factual basis that defendant raised for
first time on appeal).      The factual basis appears in the record and was
sufficiently specific to allow the district court to determine that Gutura’s conduct
was within the ambit of the charged offense. See United States v. Reasor, 418
F.3d 466, 470 (5th Cir. 2005). Gutura pleaded guilty to an indictment that set
forth the requisite elements of the offense, see Hildenbrand, 527 F.3d at 474-75
(noting that an indictment, if sufficiently specific, can serve as the sole source
of the factual basis for a guilty plea), and, inter alia, admitted to a statement of
facts that correctly encompassed the necessary components of the offense of
conviction.

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                                    No. 10-41033

      To the extent that Gutura’s argument regarding the factual basis alleges
that his statements at sentencing effectively constituted a motion to withdraw
his guilty plea, he has not sufficiently briefed this issue. He specifically does not
address the factors that we have articulated to determine whether a district
court should grant a motion to withdraw a guilty plea. See United States v.
Carr, 740 F.2d 339, 343-44 (5th Cir. 1984). Moreover, the record demonstrates
that Gutura intentionally relinquished any right to seek withdrawal of his plea;
in response to a question from the court, he explicitly stated at sentencing that
he had no interest in withdrawing his plea. See United States v. Arviso-Mata,
442 F.3d 382, 384 (5th Cir. 2006) (noting that the waiver doctrine applies only
when a defendant knows of a particular right and consciously chooses to forgo
it). In any event, because Gutura has failed to brief any argument regarding
whether he was entitled to withdraw his guilty plea, he has not alleged any basis
upon which his conviction should be reversed. See United States v. Reagan, 596
F.3d 251, 254-55 (5th Cir. 2010).
      Gutura also asserts that the district court disregarded his requests for self-
representation and improperly failed to conduct a hearing pursuant to Faretta
v. California, 422 U.S. 806 (1975). He contends that the district court’s failure
to consider his multiple demands to represent himself resulted in the imposition
of a more severe sentence because his appointed counsel performed contrary to
Gutura’s interests. The Government asserts that the instant argument is barred
by the appeal waiver in Gutura’s plea agreement.
      We pretermit deciding whether Gutura’s argument is barred by the appeal
waiver, which does not implicate our jurisdiction, because his claim is resolvable
on the merits. See United States v. Story, 439 F.3d 226, 230 (5th Cir. 2006). To
exercise the right to self-representation, a defendant must knowingly and
intelligently forgo counsel, and the request to proceed pro se must be “clear and
unequivocal.” United States v. Cano, 519 F.3d 512, 516 (5th Cir. 2008) (citation
and internal quotation marks omitted); see also United States v. Long, 597 F.3d

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                                  No. 10-41033

720, 725 (5th Cir. 2010)(defendant’s “unclear and equivocal” requests to
represent himself did not support a claim that defendant was denied his right
of self-representation). A defendant may waive his right to self-representation
through subsequent conduct indicating an abandonment of the request. Cano,
519 F.3d at 516. We review de novo the denial of a defendant’s requests to
represent himself. See United States v. Virgil, 444 F.3d 447, 452 (5th Cir. 2006).
      The record does not demonstrate that Gutura clearly and unequivocally
invoked his right to self-representation or that he maintained any such request
throughout the proceedings. See Cano, 519 F.3d at 516. Instead, the record
shows that Gutura equivocated about whether he desired to represent himself.
He communicated that he primarily sought to substitute his counsel rather than
proceeding pro se and, even after he expressed an interest in self-representation,
he allowed his appointed counsel to continue filing pleadings for him. Moreover,
when presented with the opportunity at sentencing to address directly whether
he wished to represent himself, Gutura did not request permission to proceed
pro se; Gutura instead clarified the basis for his displeasure with his appointed
counsel and agreed to the court’s proposal that he be allowed to supplement
appointed counsel’s sentencing arguments. Having acquiesced without protest
in the district court’s proposed procedure for handling his concerns about his
attorney’s representations at sentencing, he cannot now claim that he was
deprived of his right of self-representation. See id.
      AFFIRMED.




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