     Case: 11-51184       Document: 00512089536         Page: 1     Date Filed: 12/19/2012




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

                                                                            FILED
                                                                        December 19, 2012
                                     No. 11-51184
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DARRYL ANTHONY MOODY, also known as Darryl Moody,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:11-CR-145-2


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Darryl Anthony Moody appeals his guilty plea conviction of violating 18
U.S.C. § 924(c)(1)(A)(ii), by aiding and abetting the brandishing of a weapon
during and in relation to a crime of violence. He asserts that the factual basis
was insufficient to support his plea.
       A district court may not enter a judgment of conviction based upon a guilty
plea unless it is satisfied that there is a factual basis for the plea. FED. R. CRIM.
P. 11(b)(3). However, Moody did not challenge the sufficiency of the factual basis

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-51184

supporting his guilty plea in the district court. Accordingly, we will review the
district court’s decision to accept his plea only for plain error. See United States
v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010). To prevail on plain-error review,
Moody 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 evaluating whether a Rule 11 error
affected a defendant’s substantial rights, we 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).
      According to the factual basis presented by the Government, Moody and
his accomplices decided to rob the United Central Bank in Killeen, Texas. To
that end, Moody drove his accomplices to the bank during business hours,
entered and surveyed the building prior to the robbery, advised his accomplices
that there was a security guard in the bank, waited while his accomplices robbed
the bank at gun point, and drove the getaway vehicle. Because Moody advised
his accomplices that a security guard was present, the district court could infer
that Moody and his accomplices planned to overtake the bank by force and
intimidation and knew that a gun would necessarily be used to facilitate the
offense. Those facts are sufficient to establish that Moody both had the specific
intent to advance the use of the firearm during the robbery and facilitated the
use of the firearm. Accordingly, Moody’s conviction may be sustained under a
theory of aiding and abetting. See United States v. Lopez-Urbina, 434 F.3d 750,
757-59 (5th Cir. 2005).
      Those facts also are sufficient to establish that Moody and his accomplices
conspired to rob a bank, Moody’s accomplice brandished a weapon in furtherance

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                                 No. 11-51184

of that plan, and that Moody knew or could reasonably have foreseen that, as a
necessary or natural consequence of the unlawful agreement, his accomplice
would brandish a firearm during the robbery. Accordingly, Moody’s conviction
can be sustained under a theory of co-conspirator liability. See Pinkerton v.
United States, 328 U.S. 640, 647-48 (1946).
      Moody has not shown that the district court committed plain error in
finding that there was a sufficient factual basis supporting his guilty plea and
the sentence imposed.     Moreover, Moody has not shown that the alleged
deficiencies in the factual basis affected his substantial rights. He does not
assert that he would not have pleaded guilty but for the alleged error.
See Dominguez Benitez, 542 U.S. at 83.
      AFFIRMED.




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