     Case: 17-50291      Document: 00514294889         Page: 1    Date Filed: 01/04/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 17-50291
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                        January 4, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

MICHAEL GARZA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:16-CR-281-1


Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
       Michael Garza is serving a 120-month prison sentence, which he received
upon his plea of guilty to conspiring to distribute and to possess with intent to
distribute 50 grams or more of actual methamphetamine and a quantity of
marijuana.     Garza appeals his conviction, arguing that the plea was not
supported by an adequate factual basis. Specifically, he contends that the facts
in the record did not prove that he entered into an agreement with another


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 17-50291

person and that he conspired to distribute and to possess intending to
distribute 50 grams or more of actual methamphetamine. Though his plea
agreement contains a waiver of the right to appeal, it does not bar him from
challenging the factual basis of his plea. See United States v. Trejo, 610 F.3d
308, 312-13 (5th Cir. 2010). However, because Garza did not object to the
factual basis in the district court, our review is for plain error only. See id. at
313.
        Viewing the admissions Garza made at the time he pleaded guilty along
with other facts in the record, including those in the presentence report, and
the inferences that can be drawn from those facts, we conclude that there was
no clear or obvious error in finding that Garza voluntarily participated in an
agreement to distribute and to possess intending to distribute more than
50 grams or more of actual methamphetamine. See United States v. Vargas-
Ocampo, 747 F.3d 299, 303 (5th Cir. 2014); Trejo, 610 F.3d at 313, 317. Law
enforcement officers purchased        approximately     73.2   grams    of actual
methamphetamine from Garza and his codefendant. A search of Garza’s home
turned up quantities of actual methamphetamine, hydroponic marijuana, THC
wax, a semiautomatic handgun, and over $3,000 in cash. Garza admitted that,
over the course of several months, he bought approximately 1.5 pounds of
methamphetamine and 48 pounds of hydroponic marijuana, which he then
resold. Furthermore, the indictment to which Garza pleaded guilty and which
was read at rearraignment charged that Garza and his codefendant “did
combine, conspire, confederate and agree [] together and with others known
and unknown to the Grand Jury” to commit drug offenses. From these facts,
it is reasonable to infer that Garza entered into an agreement to distribute and
possess intending to distribute 50 grams or more of actual methamphetamine.
See United States v. Maseratti, 1 F.3d 330, 336 (5th Cir. 1993) (explaining that



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                                 No. 17-50291

a person “becomes a member of a drug conspiracy if he knowingly participates
in a plan to distribute drugs, whether by buying, selling or otherwise”).
      Furthermore, even if Garza could establish that the district court
committed a clear or obvious error, he has not even attempted to show that his
substantial rights were affected because he has not asserted that, but for the
error, there is a reasonable probability that he would not have pleaded guilty.
See United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004); United States
v. London, 568 F.3d 553, 560 (5th Cir. 2009).
      The district court’s judgment is AFFIRMED.




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