     Case: 10-40402 Document: 00511503730 Page: 1 Date Filed: 06/09/2011




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

                                                 FILED
                                                                            June 9, 2011
                                     No. 10-40402
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

OSCAR HUMBERTO HILTON-ROMERO,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                             USDC No. 7:09-CR-1080-4


Before KING, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Oscar Humberto Hilton-Romero pleaded guilty to one count of
transporting illegal aliens into the United States “for the purpose of commercial
advantage or private financial gain,” violations of 8 U.S.C. § 1324(a)(2)(B)(ii) and
18 U.S.C. § 2. He was sentenced to the mandatory minimum sentence of 36
months of imprisonment. See § 1324(a)(2)(B). Hilton-Romero contends that
there was an insufficient factual basis to support his guilty plea because there
was no evidence that he committed the instant offense for the purpose 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40402 Document: 00511503730 Page: 2 Date Filed: 06/09/2011

                                    No. 10-40402

financial gain. Rather, he asserts that he transported the illegal aliens for the
purpose of his own entry into the United States. In light of this error, Hilton -
Romero contends that his sentence should have been reduced by three points
pursuant to U.S.S.G. § 2L1.1(b)(1).
      Hilton-Romero did not object to the sufficiency of the factual basis before
the district court. Thus, as he acknowledges, review is for plain error. See
United States v. Vonn, 535 U.S. 55, 58-59 (2002). To show plain error, Hilton-
Romero 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). If
Hilton-Romero makes such a showing, this court has the discretion to correct the
error but only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Id. When reviewing under a plain error standard, this
court “may consult the whole record when considering the effect of any error on
substantial rights.” Vonn, 535 U.S. at 59.
      A district court cannot enter a judgment of conviction based upon a guilty
plea unless it is satisfied that there is a factual basis for the plea. F ED. R. C RIM.
P. 11(b)(3). The district court must compare the conduct that the defendant
admits with the elements of the offense charged in the indictment or
information. United States v. Hildenbrand, 527 F.3d 466, 474-75 (5th Cir. 2008).
The factual basis was sufficient to establish that Hilton-Romero was involved in
a smuggling operation that was illegally transporting aliens into the United
States for the purpose of financial gain. See United States v. Perez-Valdez, 182
F.3d 331, 332 (5th Cir. 1999); United States v. Allende-Garcia, 407 F. App’x 829,
835 (5th Cir. 2011); United States v. Smarr, 207 F. App’x 499, 500 (5th Cir.
2006). As such, Hilton-Romero has failed to establish that the district court
committed plain error in accepting his guilty plea. See Vonn, 535 U.S. at 58-59.
Hilton-Romero’s sentencing argument is therefore unavailing and the judgment
of the district court is AFFIRMED.



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