     Case: 14-20205      Document: 00513070767         Page: 1    Date Filed: 06/08/2015




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

                                                                                FILED
                                                                              June 8, 2015
                                    No. 14-20205
                                  Summary Calendar                           Lyle W. Cayce
                                                                                  Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ROBERTO RAMOS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 4:95-CR-142-57


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Roberto Ramos appeals his guilty plea conviction for conspiracy to
possess with the intent to distribute more than 1000 kilograms of marijuana.
Ramos argues that the district court plainly erred in accepting the guilty plea
because the factual basis was insufficient to support the plea.
       Because Ramos did not object to the sufficiency of the factual basis in the
district court, we review for plain error. See United States v. Palmer, 456 F.3d


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-20205

484, 489 (5th Cir. 2006). Ramos must show a forfeited error that is clear or
obvious and affects his substantial rights.        See Puckett v. United States,
556 U.S. 129, 135 (2009). Where “the district court’s factual basis finding is
subject to reasonable dispute,” there is no clear or obvious error. United States
v. Alvarado-Casas, 715 F.3d 945, 952 (5th Cir. 2013) (internal quotation marks
and citation omitted), cert. denied, 134 S. Ct. 950 (2014). To show an effect on
substantial rights, Ramos must show that, but for the error, there is a
reasonable probability that he would not have pleaded guilty. See United
States v. Dominguez Benitez, 542 U.S. 74, 83 (2004); United States v. Castro-
Trevino, 464 F.3d 536, 541 (5th Cir. 2006) (factual basis context).
      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).      The Presentence Report (PSR) may be considered in
determining whether there is a sufficient factual basis to support a defendant’s
guilty plea. United States v. Trejo, 610 F.3d 308, 313, 317 (5th Cir. 2010).
      Ramos argues that this court cannot consider facts set forth in the PSR
when evaluating the sufficiency of the factual basis, citing to Alleyne v. United
States, 133 S. Ct. 2151 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000).
His reliance on these cases is misplaced. See United States v. Daniels, 723 F.3d
562, 572-73 (5th Cir. 2013).
      To establish a conspiracy to distribute a controlled substance, the
Government must prove beyond a reasonable doubt: “(1) the existence of an
agreement between two or more persons to violate narcotics laws; (2) the




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                                 No. 14-20205

defendant’s knowledge of the agreement; and (3) his voluntary participation in
the conspiracy.” United States v. Valdez, 453 F.3d 252, 256-57 (5th Cir. 2006).
      The factual basis to which Ramos admitted stated that Michigan was an
area of distribution for a drug trafficking organization involving numerous
individuals who imported, transported, and distributed marijuana. Ramos
agreed that, during the conspiracy, over 1000 kilograms of marijuana were
transported and distributed. In the factual basis, Ramos admitted that he was
from the Michigan area and received marijuana from this organization and
delivered currency from the sale to the organization. He admitted to one
occasion where he agreed to purchase 300 pounds of marijuana from the
organization. Additionally, the PSR also detailed how Ramos was supplied
drugs from a member of the organization and then distributed them to his own
set of customers in Michigan. The proceeds were returned to members of the
organization from Texas.     More than 1500 kilograms of marijuana were
attributed to Ramos.
      Because the record shows that Ramos, a large-scale distributor, obtained
drugs through the organization, distributed them to his customers, and
returned proceeds to the organization, Ramos fails to show that the district
court plainly erred in accepting the factual basis.       See Alvarado-Casas,
715 F.3d at 951-52.
      To the extent that he contends that the district court committed Rule 11
error by failing to explain the elements of the offense, his argument fails. The
record shows that the district court properly explained the elements of the
offense.
      The judgment of the district court is AFFIRMED.




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