     Case: 16-41422      Document: 00514349418         Page: 1    Date Filed: 02/15/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                    No. 16-41422                              FILED
                                  Summary Calendar                    February 15, 2018
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOEL CUEVAS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:16-CR-525-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Joel Cuevas pleaded guilty to knowingly and intentionally conspiring to
transport an undocumented alien within the United States. See 8 U.S.C.
§ 1324(a)(1)(A)(ii), (a)(1)(A)(v)(I), and (a)(1)(B)(i). He argues that the factual
basis was insufficient to support his guilty plea because it did not show that he
intended to commit a crime when he entered into an agreement with his sister.
Because plain error review applies to an unpreserved claim of insufficiency of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-41422     Document: 00514349418     Page: 2   Date Filed: 02/15/2018


                                  No. 16-41422

the factual basis, Cuevas must show (1) an error or defect; (2) that is clear or
obvious and not subject to reasonable dispute; and that (3) affects his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009);
United States v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010). If the above showing
is made, this court has the discretion to correct the error, but only if it
“seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Puckett, 556 U.S. at 135 (internal quotation marks and citation
omitted).
      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.” Trejo, 610 F.3d at 313;
FED. R. CRIM. P. 11(b)(3). When analyzing the factual basis, the 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) (internal emphasis
and quotation marks omitted). On plain error review, the court can examine
the entire record for facts supporting the guilty plea, including the plea
colloquy, and can fairly draw inferences from the evidence presented. Trejo,
610 F.3d at 317. To prove a criminal conspiracy, the Government has the
burden of proving beyond a reasonable doubt that (1) an agreement to violate
the law existed and (2) each conspirator knew of, intended to join, and
voluntarily participated in the conspiracy. United States v. Chon, 713 F.3d
812, 818 (5th Cir. 2013).
      Based on the factual stipulation and plea colloquy, the evidence
unquestionably showed that Cuevas entered into an agreement to violate the
law and that he knew of, intended to join, and voluntarily participated in the
conspiracy. See Chon, 713 F.3d at 818; Trejo, 610 F.3d at 317. At least twice,



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    Case: 16-41422    Document: 00514349418     Page: 3   Date Filed: 02/15/2018


                                 No. 16-41422

Cuevas admitted that he had agreed with his sister to transport an illegal alien
through the Falfurrias checkpoint. Cuevas has not demonstrated that the
district court erred, plainly or otherwise, by determining that a sufficient
factual basis supported the guilty plea. See Puckett, 556 U.S. at 135; Trejo, 610
F.3d at 317. His conviction and sentence are AFFIRMED.




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