United States Court of Appeals

for the Fifth Circuit

No. 20-50497

United States of America, 

Plaintiff—Appellee,

versus

Christopher Ernest Martinez, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:19-CR-219-2

Before King, Stewart, and Haynes, Circuit Judges.

Per Curiam:*

Christopher Ernest Martinez pleaded guilty to aiding and abetting the 

production of child pornography in violation of 18 U.S.C. §§ 2251(a) and 2. 

On appeal, he asks the court to reverse his conviction, contending that the 

factual basis supporting his plea was insufficient. For the following reasons, 

we AFFIRM.

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

January 9, 2023

Lyle W. Cayce

Clerk

Case: 20-50497 Document: 00516602578 Page: 1 Date Filed: 01/09/2023
No. 20-50497

2

I.

In September 2019, Martinez’s wife—Kelsey Hubbard—sold her 

computer to a pawn shop. A pawn shop employee called the police after he

discovered child pornography on Hubbard’s computer. Officers arrested 

Hubbard and subsequently searched her phone. 

In their search, officers discovered that Hubbard had taken explicit 

photos of her 16-month-old daughter on two relevant dates: June 5 and 

September 13. They also discovered a string of incriminating text messages 

between Hubbard and Martinez. For instance, on September 18, Martinez 

texted Hubbard three images of child pornography. Eight days later, on 

September 26, Martinez texted Hubbard asking her to please send him the 

pornographic images of her daughter “again.” He then asked her to call him 

because he needed “those pics.” Hubbard obliged, sending Martinez four 

explicit photos and a video of her daughter. 1 The images were the same ones 

that the officers had discovered in Hubbard’s camera roll.

Upon her arrest, Hubbard admitted to the officers that Martinez had 

asked for the photos of her daughter so that he could use them sexually. 

Armed with the images, text messages, and Hubbard’s admission, the 

officers arrested Martinez. Martinez confessed that he had instructed

Hubbard to send the pictures and that he had sent additional images back to 

Hubbard. He also confessed that he had other images of child pornography 

on his phone. He was ultimately indicted on six counts.2

1 The parties don’t dispute the contents of the photos, which showed the child’s 

exposed private regions. 

2 The six counts were aiding and abetting the production of child pornography on 

June 5, 2019, and September 13, 2019 (counts 1 and 2); distributing child pornography on 

September 18, 2019 (counts 5, 6, and 7); and receiving child pornography on September 

26, 2019 (count 8).

Case: 20-50497 Document: 00516602578 Page: 2 Date Filed: 01/09/2023
No. 20-50497

3

After negotiations with the Government, Martinez pleaded guilty to 

two counts of aiding and abetting the production of child pornography and 

one distribution count. The district court conducted a hearing, at which

Martinez confirmed that he wanted to plead guilty, testified that he 

understood the charges, and agreed that the written factual basis for his plea 

was true and correct. The court reviewed the charges, read the indictment, 

determined that there was a factual basis to support those charges, and 

subsequently accepted Martinez’s guilty plea. After sentencing, Martinez 

timely appealed. 

II.

Martinez raises a sole issue on appeal—that the district court erred in 

accepting his guilty plea as to the aiding and abetting counts because the 

underlying factual basis was inadequate. Because Martinez did not challenge 

the factual basis before the district court, we review only for plain error. 

United States v. Avalos-Sanchez, 975 F.3d 436, 439 (5th Cir. 2020). Under 

this standard, Martinez must establish “(1) there [wa]s an error, (2) that 

[wa]s clear and obvious, and (3) that affect[ed] his substantial rights.” Id. 

(quotation omitted). If Martinez satisfies those prongs, we have discretion 

to correct the error if we conclude that “the error seriously affect[ed] the 

fairness, integrity, or public reputation of judicial proceedings.” Id. at 440 

(quotation omitted). 

Applying that standard, we must first determine whether the district 

court committed a clear or obvious error in accepting Martinez’s guilty plea.

In that regard, Martinez focuses on an alleged violation of Federal Rule of 

Criminal Procedure 11(b)(3). Under this rule, a district court cannot accept 

a guilty plea unless the court “is satisfied that there is a factual basis for the 

plea.” United States v. Hildenbrand, 527 F.3d 466, 474 (5th Cir. 2008). An 

adequate factual basis exists when “the factual conduct admitted by the 

Case: 20-50497 Document: 00516602578 Page: 3 Date Filed: 01/09/2023
No. 20-50497

4

defendant is sufficient as a matter of law to establish a violation of the statute 

to which he entered his plea.” United States v. Nepal, 894 F.3d 204, 208 (5th 

Cir. 2018) (emphasis omitted) (quotation omitted). 

In evaluating compliance with Rule 11(b)(3), we compare “(1) the 

conduct to which the defendant admits with (2) the elements of the offense 

charged in the indictment or information.” United States v. Marek, 238 F.3d 

310, 315 (5th Cir. 2001) (en banc). In our review, we are not limited to the 

facts a defendant admitted during the plea colloquy; instead, we may consider

the “entire record for facts supporting” the defendant’s confession. See 

United States v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010). Furthermore, we 

may “draw any fair inferences from the evidence.” United States v. 

Broussard, 669 F.3d 537, 546 (5th Cir. 2012).

Martinez challenges the sufficiency of his plea regarding the aiding 

and abetting count.3

 To establish this count, the Government was required 

to prove that Martinez associated with Hubbard’s production of child 

pornography, purposefully participated in it, and sought to make Hubbard’s 

“criminal venture” succeed. See United States v. Vaden, 912 F.2d 780, 783 

(5th Cir. 1990). An aider and abettor is liable for criminal acts that are the 

“natural or probable consequence of the crime” that he counseled, 

commanded, or otherwise encouraged. Id. “Association” in this case would 

require some evidence that Martinez shared Hubbard’s intent in producing 

child pornography. See United States v. Murray, 988 F.2d 518, 522 (5th Cir. 

1993); see also United States v. Peña, 949 F.2d 751, 755 (5th Cir. 1991) (noting 

that the “essence of” aiding and abetting is a “community of unlawful 

3 A defendant is guilty of production of child pornography if he “employs, uses, 

persuades, induces, entices, or coerces any minor to engage in . . . any sexually explicit 

conduct for the purpose of producing any visual depiction of such conduct.” 18 U.S.C. 

§ 2251(a). 

Case: 20-50497 Document: 00516602578 Page: 4 Date Filed: 01/09/2023
No. 20-50497

5

intent” between the aider and abettor and the principal (quotation omitted)). 

“Participation” requires proof that Martinez “engaged in some affirmative 

conduct designed to aid the venture.” United States v. Martiarena, 955 F.2d 

363, 366 (5th Cir. 1992) (quotation omitted). 

It is undisputed here that Hubbard produced child pornography. 

Martinez argues that evidence is lacking of his involvement at the time 

Hubbard produced the illicit images. Per Martinez, the record shows that 

Hubbard took the pornographic images on June 5 and September 13. But no 

facts directly confirm that Martinez was involved on those two specific dates. 

Thus, per Martinez, there’s nothing in the factual basis establishing that he

“engaged in” conduct “aid[ing] the venture” on the dates that Hubbard 

produced the pictures, and therefore he cannot as a matter of law be guilty of 

aider-and-abettor liability. See id. (quotation omitted). 

Martinez cites nothing that supports the notion that he had to do 

something on the exact two days referenced to be an aider or abettor here. 

His argument also asks us to ignore other indicia in the record of his guilt. 

For instance, Martinez plainly admitted at the plea hearing to the correctness 

of the indictment which described his interaction with Hubbard “on or 

about” the relevant dates in “coerc[ing] a minor to engage in sexually explicit 

conduct for the purpose of producing a visual depiction of such conduct.” 

He admitted that he was guilty of that conduct. In doing so, he also affirmed 

that the facts included in the factual basis were “accurate, true and correct.” 

These admissions support the district court’s determination of his

participation in the production of the illicit images on June 5 and September 

13. See United States v. Cooper, 979 F.3d 1084, 1091 (5th Cir. 2020) (analyzing 

factual basis for plea when the defendant admitted that “the factual summary 

accurately state[d] what [he] did”), cert. denied, 141 S. Ct. 1715 (2021). 

Case: 20-50497 Document: 00516602578 Page: 5 Date Filed: 01/09/2023
No. 20-50497

6

In assessing a plain error challenge, we can review the full record. See 

Avalos-Sanchez, 975 F.3d at 441 (“When we examine factual-basis sufficiency 

under plain-error review, we may look beyond those facts admitted by the 

defendant during the plea colloquy and scan the entire record for facts 

supporting his conviction.” (internal citation and quotation omitted)).

Doing so here, other circumstantial evidence lends further support from 

which the district court could conclude Martinez participated. For instance, 

Hubbard and Martinez lived together at the time of the alleged production

and regularly sent each other images of child pornography. Additionally, 

Martinez obviously knew the photos existed—otherwise he would not have 

known to ask Hubbard for them. 

Even assuming, however, that Martinez has made a reasonable 

argument, at best for him, it is unclear under our precedents whether 

Martinez’s admission and the corroborating circumstantial evidence is 

sufficient to support an aiding and abetting of child pornography charge. We 

recognize that there is a dearth of caselaw in our court and elsewhere on the 

scope of aiding-and-abetting-liability in the child pornography context. 

Moreover, it does not appear that our court has articulated a clear standard 

for what amount of evidence of advanced conduct is necessary for aider-andabettor-liability to attach. 

This lack of clarity is critical here—even if the district court erred, we 

cannot conclude that any error was plain. “An error is plain, in this context, 

if it is clear or obvious what the [G]overnment must prove to establish the 

offense, and, notwithstanding that clarity, the district court accept[ed] a 

defendant’s guilty plea without an adequate factual basis.” United States v. 

Alvarado–Casas, 715 F.3d 945, 951 (5th Cir. 2013) (internal quotation marks 

and citation omitted). Because it was not clear under our precedent what the 

Government was required to prove to establish the factual basis, we are left 

with one conclusion: any error by the district court was subject to reasonable 

Case: 20-50497 Document: 00516602578 Page: 6 Date Filed: 01/09/2023
No. 20-50497

7

dispute. See Alvarado–Casas, 715 F.3d at 952–53 (concluding the district 

court’s acceptance of the guilty plea did not constitute plain error when the 

challenge was subject to reasonable dispute). Therefore, there was no plain 

error.4 Puckett v. United States, 556 U.S. 129, 135 (2009); see also United 

States v. Garcia-Gonzalez, 714 F.3d 306, 318 (5th Cir. 2013) (concluding there 

was no plain error when “[b]oth parties acknowledge[d] that there is no 

precedent in [this] circuit, or any other circuit,” answering the question at 

issue).

Accordingly, we hold that the district court did not err in accepting 

Martinez’s plea.

AFFIRMED.

4 Because we conclude there was no plain error, we do not address the remaining 

prongs of clear error review.

Case: 20-50497 Document: 00516602578 Page: 7 Date Filed: 01/09/2023