text:      Case: 10-20167     Document: 00511698147         Page: 1     Date Filed: 12/16/2011
  
  
  
  
              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                       Fifth Circuit
  
                                                                              FILED
                                                                          December 16, 2011
  
                                         No. 10-20167                        Lyle W. Cayce
                                                                                  Clerk
  
  UNITED STATES OF AMERICA,
  
  
                                                    Plaintiff - Appellee
  
  v.
  
  MAURICIO CABRERA TORRES, also known as El Gordo,
  
  
                                                    Defendant - Appellant
  
  
  
  
                     Appeal from the United States District Court
                          for the Southern District of Texas
                                  No. 4:09-cr-00368-1
  
  
  Before JONES, Chief Judge, and DAVIS and DeMOSS, Circuit Judges.
  PER CURIAM:*
          Appellant Mauricio Cabrera Torres (Torres) appeals his guilty plea
  conviction for conspiracy to possess with intent to distribute 5 kilograms or more
  of cocaine and 100 grams or more of heroin in violation of 21 U.S.C. §§ 846, and
  841(a)(1), (b)(1)(A), and (b)(1)(B). Torres argues that the district court erred
  
  
          *
           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 R. 47.5, the court has determined that this opinion should not
  be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-20167    Document: 00511698147      Page: 2   Date Filed: 12/16/2011
  
  
  
                                    No. 10-20167
  
  when it improperly admonished him of his rights during a Rule 11 guilty plea
  hearing. See FED. R. CRIM. P. 11. Because Torres fails to establish plain error, we
  affirm.
                                          I.
        Torres was arrested following his involvement in a series of drug
  transactions. At his Rule 11 hearing, Torres pleaded guilty to Count 1 of the
  indictment—conspiracy to possess with intent to distribute 5 kilograms or more
  of cocaine and 100 grams or more of heroin. He acknowledged that he discussed
  the charges and evidence with his attorney, and that he knew what the
  government needed to prove to establish his guilt. He also indicated that he read
  and discussed the plea agreement with his attorney. Torres admitted guilt and
  that the agreement’s factual basis was true. Finally, Torres signed the written
  agreement, which included an addendum where Torres asserted that his counsel
  had fully explained the nature of the charges along with every part of the plea
  agreement, and that he understood the agreement and voluntarily pleaded
  guilty. The district court accepted the guilty plea and sentenced Torres to 132
  months’ imprisonment and five years of supervised release.
        On appeal, Torres alleges the district court erred by not clarifying that
  Count 1 included conspiracy to possess and distribute both cocaine and heroin.
  Torres argues the district court created a perception that Torres was pleading
  guilty only to a cocaine conspiracy, and that his involvement in a heroin
  conspiracy would only be included in determining his “relevant conduct” for
  sentencing purposes. Torres also contends that the district court erred by failing
  to include two elements of a conspiracy offense in its recitation of the conspiracy
  charge—the defendant’s knowledge of an agreement and his voluntary
  participation in the conspiracy—resulting in Torres’s belief that the government
  had to prove only an agreement between himself and his co-conspirators to
  commit a crime.
  
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                                         No. 10-20167
  
                                                II.
         Because Torres failed to object to the district court’s alleged errors during
  his Rule 11 hearing, we review for plain error only.1 See United States v. Reyes,
  300 F.3d 555, 558 (5th Cir. 2002) (citing United States v. Vonn, 535 U.S. 55, 59
  (2002)). Under our plain error analysis, Torres must establish that: “(1) there is
  an error, (2) that is clear and obvious, and (3) that affects his substantial rights.”
  Id. (citing United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001) (en banc)).
  “If these factors are established, the decision to correct the forfeited error still
  lies within our sound discretion, which we will not exercise unless the error
  seriously affects the fairness, integrity, or public reputation of judicial
  proceedings.” Id. (quoting Marek, 238 F.3d at 315).
         Rule 11 proceedings ensure that a defendant’s guilty plea is knowing and
  voluntary. Id. The district court “must personally inform the defendant of the
  nature of the charge to which he pleads . . . [and] determine that the defendant
  understands the nature of the charge.” United States v. Adams, 566 F.2d 962,
  967 (5th Cir. 1978). To show that his substantial rights have been affected,
  Torres “must show a reasonable probability that, but for the error, he would not
  have entered the [guilty] plea.” United States v. Dominguez Benitez, 542 U.S. 74,
  83 (2004). The reviewing court evaluates the entire record to determine whether
  a different result was probable had the error not occurred. Id.
                                                A.
         The district court’s failure to discuss the heroin conspiracy in Count 1 does
  not constitute plain error. “Under [21 U.S.C. § 846], the government must
  
  
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           The government contends Torres waived his right to appeal because the district court
  inquired whether any other advice was required before entering Torres’s plea and his counsel
  said “No.” This court has held that counsel’s declination to offer an objection is not the same
  as an intentional abandonment of all objections. See United States v. Arviso-Mata, 442 F.3d
  382, 384 (5th Cir. 2006). Waiver cannot occur when “there is no evidence . . . that counsel knew
  of the [objectionable] issue and that he consciously chose to forego it.” Id.
  
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                                    No. 10-20167
  
  demonstrate beyond a reasonable doubt that the defendant conspired to possess
  with intent to distribute some controlled substance.” United States v.
  Patino-Prado, 533 F.3d 304, 309–10 (5th Cir. 2008). “Drug type is not an element
  of [21 U.S.C. § 841(a)(1)].” Id. at 309. To sustain a conviction against Torres at
  trial, the government only needed to prove conspiracy with respect to cocaine or
  heroin, but not both. See id. at 310 (holding proof of a marijuana conspiracy
  sufficient to convict a defendant of an indicted charge alleging conspiracy to
  possess and distribute both marijuana and cocaine). Thus, the district court did
  not err when it omitted heroin from the recitation of Count 1 because the
  inclusion of cocaine sufficiently informed Torres that possession of a controlled
  substance was an element of the offense.
                                         B.
        To sustain a conspiracy conviction, “the government must prove beyond a
  reasonable doubt: (1) the existence of an agreement between two or more persons
  to violate narcotics laws, (2) the defendant’s knowledge of the agreement, and
  (3) his voluntary participation in the conspiracy.” Id. at 309. Torres complains
  the district court erred by not discussing the second and third elements of a
  conspiracy, and argues a more complete explanation was necessary because
  “Rule 11’s requirement that defendants understand the ‘nature of the charge’
  against them refers to the elements of the offense.” United States v.
  Lujano-Perez, 274 F.3d 219, 224 (5th Cir. 2001) (citation omitted).
        Torres fails to establish a reasonable probability that, had the district
  court explained the second and third elements of a conspiracy, he would not have
  pleaded guilty. Record evidence shows that the government and Torres’s counsel
  never believed Torres would proceed to trial. Nineteen days before the trial’s
  scheduled start, Torres’s attorney filed a motion to substitute counsel stating
  that he had not prepared for trial because Torres indicated he was going to plead
  guilty. The motion indicated counsel had conferred with the government, who
  
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                                    No. 10-20167
  
  similarly had not prepared a case because it expected Torres to plead guilty.
  Torres pleaded guilty at the Rule 11 hearing four days later.
        Moreover, Torres’s factual admissions in open court suggest the strength
  of the government’s case against him. Torres admitted that the government
  investigated him for several months prior to his arrest, ultimately capturing his
  participation in multiple drug transactions on recorded audio and video. Torres
  also admitted he sold drugs to a confidential informant. See Dominguez Benitez,
  542 U.S. at 85 (noting the strength of the government’s case when a defendant
  was observed selling drugs to a confidential informant). Additionally, Torres
  admitted to brokering a deal between a seller and a buyer for a drug transaction
  involving 15 ounces of heroin, thereby acknowledging the voluntary nature of his
  participation in the conspiracy. The strength of the government’s case readily
  suggests that Torres would not have proceeded to trial absent the alleged Rule
  11 error.
        Finally, the benefits contained within Torres’s plea agreement support the
  conclusion that he would not have proceeded to trial. If Torres elected for a trial,
  he would not have received the 3 point offense level reduction included in his
  plea agreement. If convicted at trial, Torres’s guidelines sentencing range would
  have been 151 to 188 months of imprisonment based upon an offense level of 34
  instead of the guilty plea’s result of 120 to 135 months based on an offense level
  of 31. Accordingly, a reasonable probability exists that Torres voluntarily
  pleaded guilty to avoid the likelihood of receiving a sentence 16 to 53 months
  longer than the maximum he was eligible for under the acceptance of
  responsibility provision within the plea agreement.
                                          III.
        We find that Torres has not demonstrated a reasonable probability that
  he would have proceeded to trial if the district court had not committed the
  alleged Rule 11 errors. Without such a showing, Torres cannot show that any
  
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                                    No. 10-20167
  
  error affected his substantial rights. For the forgoing reasons, Torres’s conviction
  must be AFFIRMED.
  
  
  
  
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