     Case: 12-40607       Document: 00512234962         Page: 1     Date Filed: 05/08/2013




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

                                                                            FILED
                                                                            May 8, 2013
                                     No. 12-40607
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JULIO CESAR MARTINEZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:12-CR-37-1


Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Julio Cesar Martinez pleaded guilty to: conspiracy to possess, with intent
to distribute, 500 grams or more of cocaine, in violation of 21 U.S.C. § 846 (count
one); and possession, with intent to distribute, 500 grams or more of cocaine, in
violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(B) (count two). He was sentenced,
inter alia, to: concurrent terms of 84 months’ imprisonment, and a $2,000 fine.
       Martinez contends the district court committed reversible plain error in
accepting his guilty plea on count one (conspiracy to possess with the intent 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40607

distribute more than 500 grams of cocaine) because the factual basis was
insufficient to support his guilty plea for conspiracy. He maintains the factual
basis failed to establish the existence of any agreement between him and
another person, which is a necessary element of conspiracy. The Government
concedes error, acknowledging the factual basis was insufficient. It agrees that,
under the applicable plain-error standard of review discussed below, the
conviction and sentence for that count should be vacated.
      Because Martinez did not object in district court to the sufficiency of the
factual basis, review is only for plain error. E.g., United States v. Palmer, 456
F.3d 484, 489 (5th Cir. 2006). For reversible plain error, Martinez must show
a forfeited error that is clear or obvious, and that affected his substantial rights.
E.g., Puckett v. United States, 556 U.S. 129, 135 (2009). To show his substantial
rights were affected, Martinez must demonstrate “a reasonable probability that,
but for the error, he would not have entered the plea”.           United States v.
Dominguez Benitez, 542 U.S. 74, 83 (2004). If he makes such a showing, our
court will exercise its discretion to correct the error only if it “seriously affects
the fairness, integrity, or public reputation of judicial proceedings”. Puckett, 556
U.S. at 135 (internal quotation marks and citation omitted).
      Martinez and the Government are correct that the factual basis to which
Martinez agreed did not establish the existence of an agreement between him
and another person to violate the narcotics laws. See United States v. Valdez,
453 F.3d 252, 256-57 (5th Cir. 2006) (conspiracy requires defendant’s knowledge
of and voluntary participation in agreement between two or more persons).
Accordingly, the district court committed plain (clear or obvious) error. See FED.
R. CRIM. P. 11(b)(3) (court must determine there is factual basis before accepting
guilty plea); United States v. Garcia-Paulin, 627 F.3d 127, 133-34 (5th Cir.
2010). Because there is a reasonable probability that Martinez would not have
entered his guilty plea if he realized the factual basis did not support a
conviction for conspiracy, the error affected his substantial rights. See Garcia-

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                                  No. 12-40607

Paulin, 627 F.3d at 134 (defendant would not have pled guilty if he had known
factual basis was insufficient). Finally, a guilty plea based on facts that fail to
support a conviction seriously affects the fairness of judicial proceedings.
Palmer, 456 F.3d at 491-92. Accordingly, we exercise our discretion and vacate
Martinez’ conviction on count one; this matter is remanded for further
proceedings on count one. E.g., United States v. Carreon-Ibarra, 673 F.3d 358,
367 (5th Cir. 2012). (The conviction on count two is not challenged.)
      Martinez next contends his sentence on count two should be vacated, and
the case should be remanded for resentencing on both counts. He maintains the
conviction on count one necessarily affected the district court’s sentencing
decision on count two; therefore, both sentences should be vacated. In response,
the Government asserts vacating the conspiracy conviction should have no
bearing on the sentence for count two, because each conviction and sentence
stands alone, and there is no reason to believe the count-one sentence affected
the count-two sentence.
      The burden is on the Government to show a vacated conviction did not
affect sentencing on another count. See United States v. Whitfield, 590 F.3d 325,
366 (5th Cir. 2009). Because nothing in the record shows Martinez’ sentence on
count two was not affected by his invalid conviction on count one, the sentences
on both counts are vacated and the case is remanded for resentencing following
the outcome of proceedings on count one.
      As he did in district court, Martinez challenges the imposition of a fine as
part of his sentence. In the light of our vacating both sentences and remanding
for resentencing, we decline to address this claimed sentencing error. E.g.,
United States v. Akpan, 407 F.3d 360, 377 n.62 (5th Cir. 2005).
      Martinez’ conviction for count one is VACATED; his conviction for count
two is AFFIRMED; his sentence for both counts is VACATED; and this matter
is REMANDED for further proceedings consistent with this opinion.



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