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

                                                FILED
                                                                  August 5, 2009
                                 No. 08-20153
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

CRESENCIO GONZALEZ, JR., also known as Chris, also known as Chencho,

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:07-CR-28-3


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
      Defendant-Appellant Cresencio Gonzalez, Jr. appeals his guilty plea
conviction for conspiracy to launder monetary instruments. He asserts, based
on the intervening decision in United States v. Santos, 128 S. Ct. 2020 (2008),
that (1) there is an insufficient factual basis to support his guilty plea, (2) the
district court erred in its F ED. R. C RIM. P. 11 admonishments, and (3) his plea
was not knowingly and voluntarily entered. Gonzalez contends that Santos held



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                   No. 08-20153

that “proceeds” under the money laundering statute means “profits,” insisting
that the district court should have advised him of this definition at
rearraignment, that there is a reasonable probability that he would not have
pleaded guilty had he been properly admonished, and that this rendered his
guilty plea unknowing and involuntary. Gonzalez also contends that the factual
basis was insufficient to support his guilty plea because it did not establish that
the drug proceeds involved were profits.
      We review a claim raised for the first time on appeal for plain error, even
when the claim is based on an intervening Supreme Court decision. United
States v. Rios-Quintero, 204 F.3d 214, 215 (5th Cir. 2000). To establish plain
error, the appellant must show a forfeited error that is clear or obvious and that
affects his substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429
(2009). Whether the error is plain is based on the law at the time of the appeal.
Johnson v. United States, 520 U.S. 461, 468 (1997). If the appellant meets the
first three prongs under Puckett, we have the discretion to correct the error, but
will do so only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Puckett, 129 S. Ct. at 1429.
      The law governing the definition of proceeds under 18 U.S.C. § 1956
remains unclear after Santos. See United States v. Brown, 553 F.3d 768, 783,
785 (5th Cir. 2008), cert. denied, 129 S. Ct. 2812 (2009). In light of this fact, and
given the disagreement in the decision over the comment in Justice Stevens’s
concurrence that gross revenues constitute proceeds under the statute when the
sale of contraband is involved, any error by the district court is not clear or
obvious. See United States v. Fernandez, 559 F.3d 303, 316 (5th Cir.), petition
for cert. filed (U.S. June 9, 2009) (No. 08-1517). Accordingly, Gonzalez has not
established plain error.
      AFFIRMED.




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