     Case: 11-40554       Document: 00512185184         Page: 1     Date Filed: 03/25/2013




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

                                                                            FILED
                                                                          March 25, 2013
                                     No. 11-40554
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MICHAEL CHARLES KIRSCH,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 1:10-CR-1261-3


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Michael Charles Kirsch pleaded guilty to transporting aliens within the
United States for the purpose of private financial gain under 8 U.S.C.
§ 1324(a)(1)(B)(i). He was sentenced to 27 months of imprisonment and three
years of supervised release.
       The issue before our court is whether there was a sufficient factual basis
for the district court to accept Kirsch’s plea under § 1324(a)(1)(B)(i). Even
though Kirsch validly waived his right to appeal, he may challenge the factual

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40554     Document: 00512185184       Page: 2   Date Filed: 03/25/2013

                                   No. 11-40554

basis underlying his guilty plea. United States v. Baymon, 312 F.3d 725, 727-30
(5th Cir. 2002).
      Because Kirsch did not challenge the sufficiency of the factual basis in
district court, review is for plain error only. United States v. Trejo, 610 F.3d 308,
313 (5th Cir. 2010). For reversible plain error, Kirsch must show a forfeited
error that is clear or obvious and affects his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). “In assessing factual sufficiency under the
plain error standard, we may look beyond those facts admitted by the defendant
during the plea colloquy and scan the entire record for facts supporting his
conviction.” Trejo, 610 F.3d at 313. “This includes the facts gleaned from the
plea agreement and plea colloquy, [and] the factual findings relied upon in the
presentence report . . . , as well as fairly drawn inferences from the evidence
presented both post-plea and at the sentencing hearing. The indictment, if
specific, is also fair game.” Id. at 317 (internal quotation marks and citations
omitted).
      The record as a whole shows that Kirsch conspired with others to
transport illegal aliens into the United States for financial gain. See id. at 313.
Accordingly, the district court did not commit reversible plain error by finding
that there was a sufficient factual basis for the “financial gain” element of
Kirsch’s offense. See Puckett, 556 U.S. at 135.
      AFFIRMED.




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