     Case: 14-40131      Document: 00513256868         Page: 1    Date Filed: 11/03/2015




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

                                                                                     FILED
                                      No. 14-40131                            November 3, 2015
                                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                                            Clerk


              Plaintiff - Appellee

v.

GREG KEYSHUN MONROE,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:12-CR-235


Before STEWART, Chief Judge, and CLEMENT and ELROD, Circuit Judges.
PER CURIAM:*
       After being indicted for conspiring to possess with intent to distribute
cocaine in violation of 21 U.S.C. § 846, Defendant-Appellant Greg Keyshun
Monroe (“Monroe”) pleaded guilty pursuant to a plea agreement. The district
court accepted Monroe’s guilty plea and sentenced him within the relevant
Guidelines range to sixty-three months of imprisonment and four years of
supervised release.      Though he raised no objections in the district court,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-40131    Document: 00513256868         Page: 2   Date Filed: 11/03/2015



                                   No. 14-40131
Monroe now challenges his conviction and contends that the district court did
not have a sufficient factual basis to accept his plea. Because Monroe has not
satisfied the third and fourth prongs of the plain error standard, we AFFIRM
his conviction.
                                          I.
      On   October    5,   2012,    the    United    States   Drug     Enforcement
Administration (“DEA”) received information from a confidential source (the
“CS”) indicating that the CS and Monroe had previously been involved in drug
trafficking. The CS stated that Monroe was still involved in drug trafficking
and that Monroe wished to purchase two kilograms of cocaine. Under the
DEA’s direction, the CS agreed to meet with Monroe at a Dallas Wal-Mart to
facilitate the transfer of cocaine. DEA agents established surveillance at the
Wal-Mart, and the CS and Monroe had a brief meeting in Monroe’s vehicle.
After the meeting, the CS informed DEA agents that Monroe had money to
purchase cocaine in his vehicle.
      After being stopped by a Dallas police officer, Monroe consented to a
search of his vehicle, which led to the discovery of a gym bag containing
$64,800 in U.S. currency wrapped in rubber bands and plastic wrapping, a
digital scale, plastic wrap, a vacuum sealer, a whisk, a metal cooking pot, an
unopened box of baking soda, gloves, and a mask. Monroe was arrested. After
being arrested, Monroe informed an interviewing officer that the money in his
vehicle was to purchase 1 to 1½ kilograms of cocaine. He further explained
that he recently decided to get back into buying and selling cocaine.
      The DEA filed a criminal complaint against Monroe which charged him
with conspiring “to possess with the intent to distribute 5 kilograms or
more . . . of cocaine” in violation of 21 U.S.C. §§ 841(a)(1) and 846. A federal
grand jury returned an indictment charging the same as the criminal
complaint. On June 3, 2013, the Government filed a one-count Information
                                          2
    Case: 14-40131     Document: 00513256868    Page: 3   Date Filed: 11/03/2015



                                 No. 14-40131
charging that Monroe “did knowingly and intentionally combine, conspire, and
agree with other persons known and unknown to knowingly and intentionally
possess with intent to distribute at least 500 grams but less than 2
kilograms . . . of cocaine.” Monroe pleaded guilty to the Information pursuant
to a plea agreement.
      In connection with the plea agreement, Monroe stipulated to a
Statement of Facts in Support of Plea Agreement (the “Factual Resume”). The
Factual Resume recited the elements of the offense and specifically stated that
“Monroe and one or more persons in some way or manner made an agreement
to commit the crime charged in the Information.” The Factual Resume further
stated that “Monroe’s role in this conspiracy was to obtain cocaine from a
source[,] which would then be distributed to others during the term of the
conspiracy.” At rearraignment, the magistrate judge asked Monroe to explain
what exactly he had done. In response, Monroe explained that he “met a guy
to purchase something, some -- a kilogram of cocaine from him. Didn’t know
he was an informant.” The magistrate judge then asked, “[b]ut it was part of
the conspiracy?” Monroe responded, “I guess so, yes, sir.”
      Monroe now appeals his conviction and contends that the district court
committed plain error in accepting his guilty plea when it was not supported
by a sufficient factual basis.
                                      II.
       “We review guilty pleas for compliance with Rule 11.” United States v.
Garcia-Paulin, 627 F.3d 127, 130 (5th Cir. 2010) (citing United States v.
Castro-Trevino, 464 F.3d 536, 540 (5th Cir. 2006)). Under Rule 11(b)(3), “a
district court taking a guilty plea [must] make certain that the factual conduct
admitted by the defendant is sufficient as a matter of law to establish a
violation of the statute to which he entered his plea.” United States v. Trejo,
610 F.3d 308, 313 (5th Cir. 2010). The factual basis must be “sufficiently
                                       3
    Case: 14-40131     Document: 00513256868      Page: 4    Date Filed: 11/03/2015



                                  No. 14-40131
specific to enable the district court to compare the conduct admitted by the
defendant with the elements of the offense charged.” Id.
      “A district court’s acceptance of a guilty plea is a factual finding which is
generally reviewed under the clearly erroneous standard.” Garcia-Paulin, 627
F.3d at 131. However, Monroe concedes that because he is questioning the
sufficiency of the factual basis for his guilty plea for the first time on appeal,
this court reviews the claim for plain error. Trejo, 610 F.3d at 313. Under
plain error review, the defendant must show that “(1) there is an error; (2) the
error is clear and obvious; and (3) the error affects his substantial rights.”
Garcia-Paulin, 627 F.3d at 131 (quoting Castro-Trevino, 464 F.3d at 541). If
the first three prongs are satisfied, the court has discretion to remedy the error
“only if the error ‘seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.’” United States v. Delgado, 672 F.3d 320, 329 (5th Cir.
2012) (en banc) (quoting Puckett v. United States, 556 U.S. 129, 135 (2009))
(alteration in original). “Meeting all four prongs is difficult, as it should be.”
Id. (internal quotations omitted).
                                        III.
      Monroe asserts that the factual basis relied on by the district court is
insufficient to support his conspiracy conviction. Even assuming that the
district court committed a clear and obvious error by accepting Monroe’s plea
absent a sufficient factual basis, this error does not warrant reversal under
plain error review because Monroe has not shown that it affects his substantial
rights or explained why this court should exercise its discretion.
                                        A.
      In addition to showing that the district court committed a clear and
obvious error, a defendant must demonstrate that the error affected his
substantial rights. See Garcia-Paulin, 627 F.3d at 131. That is, the defendant
“must show a reasonable probability that, but for the error, he would not have
                                         4
    Case: 14-40131     Document: 00513256868     Page: 5   Date Filed: 11/03/2015



                                  No. 14-40131
entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004);
see also United States v. London, 568 F.3d 553, 558 (5th Cir. 2009). Monroe
has not made this showing.
      In Laverde-Gutierrez, we held that a defendant’s general challenge to the
factual basis of his plea failed to establish “a reasonable probability that, but
for the alleged Rule 11 error, he would not have entered the guilty plea.”
United States v. Laverde-Gutierrez, No. 05-21048, 2008 WL 5068655, at *2 (5th
Cir. Nov. 26, 2008) (per curiam).      There, the defendant had not tried to
withdraw his guilty plea either in the district court or on appeal. Id. Instead,
the defendant only requested that his guilty plea “be set aside [and] the case
remanded to the district court for further proceedings.” Id. (alteration in
original). Further, the defendant did “not request the opportunity to go to trial”
or identify “any portion of the record demonstrating that his plea decision was
affected by the alleged error.” Id. (citing United States v. Molina, 469 F.3d
408, 412 (5th Cir. 2006)). Accordingly, we determined that the defendant failed
to establish “that he would not have pled guilty to the . . . offense if the trial
court had solicited his admission of additional facts sufficient to support his
plea.” Id.; see also United States v. Mireles-Hernandez, 321 F. App’x 377, 379
(5th Cir. 2009) (per curiam) (concluding, for the same reasons as Laverde-
Gutierrez, that defendant failed to establish “a reasonable probability that he
would not have pled guilty”).
      Monroe did not attempt to withdraw his guilty plea in the district court.
Like the defendant in Laverde-Gutierrez, Monroe requests only that this court
“vacate his conviction.” Further, Monroe does not identify any portion of the
record that demonstrates that his decision to plead guilty was affected by the
alleged error. Instead, Monroe only asserts that he “would not enter a plea to
a charge of which he was not guilty.” This conclusory assertion, however, is
insufficient to establish that Monroe would not have pleaded guilty if the
                                        5
    Case: 14-40131     Document: 00513256868     Page: 6   Date Filed: 11/03/2015



                                  No. 14-40131
district court had questioned him further about the underlying facts. See
Laverde-Gutierrez, 2008 WL 5068655, at *2; Mireles-Hernandez, 321 F. App’x
at 379; see also United States v. Temple, 363 F. App’x 298, 299 (5th Cir. 2010)
(per curiam) (noting waiver of argument raised initially in reply brief but
observing that defendant’s assertion that he “would not have pled guilty to a
crime he did not commit” was “nevertheless unsupported by the record”).
Because Monroe has not demonstrated a reasonable probability that, but for
the error, he would not have entered his guilty plea, he has failed to meet the
third prong of plain error review.
                                       B.
      Monroe also fails to meet the fourth prong of the plain error standard.
Even if a defendant can establish plain error affecting his substantial rights,
this court “will not vacate the judgment unless the error ‘seriously affects the
fairness, integrity, or public reputation of the proceedings.’” Garcia-Paulin,
627 F.3d at 131 (quoting Castro-Trevino, 464 F.3d at 541); see also United
States v. Olano, 507 U.S. 725, 737 (1993) (“[A] plain error affecting substantial
rights does not, without more, satisfy [the fourth prong] . . . .”); United States
v. Wooley, 740 F.3d 359, 369 (5th Cir. 2014) (“This circuit has repeatedly
emphasized that even when we find that the first three factors have been
established, this fourth factor is not automatically satisfied.”) (internal
quotations omitted).
      Monroe makes no specific argument on this court’s exercise of its
discretion. Instead, Monroe simply argues for a general reversal based on the
district court’s alleged error. In United States v. Rivera, 784 F.3d 1012 (5th
Cir. 2015), we rejected a “per se fourth-prong argument” and declined to
remedy a plain error where the appellant made no showing on why the court
should exercise its discretion. Rivera, 784 F.3d at 1018. Observing that a per
se approach would “collapse the fourth prong into the first three,” we noted
                                        6
    Case: 14-40131    Document: 00513256868     Page: 7   Date Filed: 11/03/2015



                                 No. 14-40131
that this court has “refused to correct plain errors when . . . the complaining
party makes no showing as to the fourth prong.” Id. at 1018–19 & n.3. Because
Monroe has pointed to nothing beyond the district court’s alleged error to
justify reversal, he has failed to show why his conviction “impugns the fairness,
integrity, or public reputation of the court system.” Id. at 1019.
                                      IV.
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




                                       7
