     Case: 12-20740      Document: 00512444486         Page: 1    Date Filed: 11/18/2013




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


                                    No. 12-20740                                      FILED
                                  Summary Calendar                            November 18, 2013
                                                                                 Lyle W. Cayce
                                                                                      Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE MIGUEL TREVINO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-83-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       A superseding indictment charged Jose Miguel Trevino with four counts
of drug and weapons charges. Trevino pleaded guilty to conspiracy to possess
with intent to distribute five kilograms or more of cocaine (Count 1), conspiracy
to use and carry a firearm during and in relation to a drug trafficking crime
(Count 3), and aiding and abetting in the use and carrying of a firearm during
and in relation to a drug trafficking crime (Count 4).                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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 12-20740     Document: 00512444486      Page: 2    Date Filed: 11/18/2013


                                  No. 12-20740

sentenced Trevino to a total of 180 months of imprisonment, which included a
mandatory consecutive sentence of 60 months of imprisonment on Count 4.
Trevino argues that the evidence was insufficient to support his conviction on
Count 4 because there was no evidence that he undertook any affirmative
action to facilitate or encourage the use or carrying of a firearm.
      Because Trevino did not challenge the sufficiency of the evidence below,
our review is for plain error. United States v. Broussard, 669 F.3d 537, 546 (5th
Cir. 2012). To prevail on plain-error review, Trevino must show that an error
occurred, that the error was clear or obvious, and that the error affected his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If
those factors are established, the decision to correct the forfeited error is within
the court’s sound discretion, which will not be exercised unless the error
seriously affected the fairness, integrity, or public reputation of judicial
proceedings. Id.
      In determining whether a district court committed plain error in finding
that there existed a sufficient factual basis for the defendant’s plea, this court
may examine the entire record for facts supporting the guilty plea, including
the facts gleaned from the plea agreement and plea colloquy, the factual
findings relied upon in the PSR, as well as “fairly drawn” inferences from the
evidence presented both post-plea and at the sentencing hearing.            United
States v. Trejo, 610 F.3d 308, 317 (5th Cir. 2010). In evaluating whether a Rule
11 error affected a defendant’s substantial rights, this court will review the
entire record to determine whether there exists 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).
      To support a conviction under 18 U.S.C. § 924(c)(1)(A), the Government
is required to present facts that a defendant used or carried a firearm during



                                         2
    Case: 12-20740     Document: 00512444486      Page: 3    Date Filed: 11/18/2013


                                  No. 12-20740

and in relation to a crime of violence or a drug trafficking crime and that the
possession of the firearm was in furtherance of that crime. § 924(c)(1)(A);
United States v. Cooper, 714 F.3d 873, 877 (5th Cir.), cert. denied, 2013 WL
3948706 (2013). To support a conviction of aiding and abetting a crime, the
Government is required to present facts establishing that a defendant “(1)
associated with the criminal venture, (2) participated in the venture, and (3)
sought by action to make the venture succeed.” United States v. Lopez-Urbina,
434 F.3d 750, 757 (5th Cir. 2005) (internal quotation marks and citation
omitted).   In this case, the Government was required to present facts
demonstrating that Trevino “act[ed] with the knowledge or specific intent of
advancing the use of the firearm” and that he “performed some affirmative act
. . . to facilitate or encourage the use or carrying of a firearm.” See id. at 758.
      The Government proved that Trevino and his codefendant planned to
commit an armed robbery of a stash house and that Trevino’s codefendant
possessed a shotgun in furtherance of that plan. During an initial meeting
with an undercover ATF agent, Trevino discussed the logistics of the plan with
the agent, which included informing the agent that no one in the targeted stash
house would be left alive. He further told the undercover ATF agent that he
had experience in executing this type of armed robbery. Trevino also identified
his codefendant as his “point man” for the armed robbery operation and
introduced him to the undercover ATF agent.
      Although there was no evidence that Trevino procured or provided the
shotgun to his codefendant, a reasonable inference may be fairly drawn from
the facts contained in the record that Trevino organized and planned the
robbery of a cocaine stash house and that, in furtherance of the operation, he
facilitated or encouraged his codefendant to use or carry a firearm. See Lopez-
Urbina, 434 F.3d at 758-59. Because the evidence was sufficient to support



                                         3
    Case: 12-20740     Document: 00512444486     Page: 4   Date Filed: 11/18/2013


                                  No. 12-20740

Trevino’s conviction, the district court did not plainly err by accepting his plea
to the offense of aiding and abetting the use and carrying of a firearm in
relation to the armed robbery. See Puckett, 556 U.S. at 135.
      AFFIRMED.




                                        4
