Monday, September 18, 2006

Defendant Fails to Demonstrate Necessary Prejudice to Vacate Conviction Based on Guilty Plea

United States v. Castro-Trevino, No. 05-40850 (5th Cir. Sept. 11, 2006)

Castro was charged with and pled guilty to "exporting from the United States into Mexico 11,500 rounds of ammunition in violation of 22 U.S.C. §§ 2778(b)(2) and (c); 22 C.F.R. §§ 121.1, 123.1(a), and 127.3; and 18 U.S.C. § 2." Slip op. at 1. Castro sought to vacate his conviction on appeal, arguing that there was an insufficient factual basis for his guilty plea because the facts established that he was guilty of attempting to export the ammunition rather than actual exportation.

Applying plain error review, the court refused to vacate the conviction. Although there was error and the error was plain, the court held that the error did not affect Castro's substantial rights. In the context of a guilty plea, a defendant "'must show a reasonable probability that, but for the error, he would not have entered the plea.'" Slip op. at 8-9 (quoting United States v. Dominguez Benitez, 124 S. Ct. 2333, 2336 (2004)). Castro failed to demonstrate prejudice because "a conviction for an attempt to commit the completed offense charged (or a conviction for some other lesser included offense of that charged), may properly be based on an indictment which alleges only the completed offense and does not mention attempt (or other lesser included offense of that charged)[,]" and Castro agreed to a factual basis that clearly described the conduct in terms of an attempt rather than a completed offense. Id. at 16-17. The court instead "modifie[d] the judgment in accordance with th[e] opinion to reflect conviction for attempted exportation of ammunition rather than the completed offense, and affirm[ed] the judgment as so modified." Id. at 21.

(There's also some discussion about whether the statute and incorporated regulations punish attempts (yes), and whether Castro's offense level should have been calculated under guideline §2X1.1 (no)).


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