* 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 circumstancesset forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________

No. 98-11410

Summary Calendar

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHARLES MCCARVER,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

(3:98-CR-112-3-P)

October 6, 1999

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Appellant Charles McCarver, appearing pro se, appeals his guilty-plea conviction for

conspiracy to possess cocaine, cocaine base, and heroin with intent to distribute, in violation of 21

U.S.C. § 841(a)(1). We affirm the judgment of the district court.

Under the terms of McCarver’s plea agreement, the government agreed to dismiss the

remaining counts of the indictment and not to prosecute McCarver for any other offense arising out

of the conduct in the factual resume. The agreed-upon factual resume stated that McCarver

participated in a conspiracy to distribute cocaine and heroin but made no mention of crack cocaine.

The presentence report (“PSR”) attributed to McCarver various quantities of heroin, cocaine, and

crack co caine and recommended a sentence between 135 and 168 months. The district court
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sentenced McCarver to 168 months imprisonment. McCarver now appeals his conviction and

sentence.

McCarver first claims that the government breached sections 9 and 12 of the plea agreement

when it included information about McCarver’s possession and/or sale of crack cocaine in the PSR.

Because McCarver raises this issue for the first time on appeal, we review the alleged violations for

plain error. See United States v. Cerverizzo, 74 F.3d 629, 631 (5th Cir. 1996).

Section 9 of the plea agreement provided, in part, that:

Except as otherwise provided herein, the United States Attorney for the Northern

District of Texas agrees further not to prosecute the defendant for any other offense

arising out of the conduct described in the factual resume.

McCarver contends that because the factual resume only refers to cocaine and heroine, the

government’s inclusion of crack cocaine in the PSR violated § 9. McCarver further avers that

because crack cocaine was not included in the factual resume, it was not part of his guilty plea.

McCarver’s argument overlooks the fact that the factual resume is just one part of a plea agreement

in which he already pleaded guilty to a count of possession with intent to distribute cocaine, heroine,

and crack cocaine. Consequently, any crack attributable to McCarver is relevant to the sentence to

be imposed for pleading guilty to the charged conduct.

Even if McCarver’s conviction was, as he argues, only for conspiracy to possess cocaine and

heroine, including his possession or distribution of crack cocaine in the PSR is not a “prosecution”

and therefore is not a breach of § 9 of the plea agreement. See United States v. Hoster, 988 F.2d

1374, 1378 (5th Cir. 1993) (including uncharged drugs as offense conduct in PSR did not violate

agreement not to prosecute defendant for additionaloffenses);United States v. Kinder, 946 F.2d 362,

367 (5thCir. 1991) ; United States v. Rodriguez, 925 F.2d 107, 112 (5thCir. 1991) (“The prosecutor

merely agreed not to prosecute [defendant]for these offenses, not to withhold factsfromthe court.”).

Section 12 of the plea agreements provides as follows:

The defendant, Charles McCarver, has reviewed the Factual Resume in this case and

agreesthat the information contained therein istrue and correct and agreesthat it will

be submitted to the Court as evidence and agrees that the facts set forth herein may

be considered by the Court in determining what sentence to impose.
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McCarver claimsthat the government violated thissection ofthe agreement by providing the

probation department with information about his possession and sale of crack cocaine. Section 12

is permissive rather than restrictive. It permits the court to consider the information in the factual

resume, but says nothing about the facts upon which the sentence can be based. The government’s

submission of information concerning McCarver’s sale of crack cocaine did not implicate §12 of the

agreement. Since McCarver has failed to demonstrate that the government breached either §9 or §12

of the plea agreement, he cannot show plain error.

Next, McCarver arguesthat his guilty plea was not voluntary because the district court failed

to adequately inform him of the elements of the offense to which he was pleading guilty. We review

a Rule 11 challenge under a harmless error standard. See United States v. Johnson, 1 F.3d 296 (5th

Cir. 1993). 

Rule 11(c)(1) requires that prior to accepting a plea of guilty or nolo contendere, the court

must personally inform the defendant of and determine whether he understands the nature of the

charges to which the plea is offered. See Fed. R. Crim. P. 11(c)(1). Where the elements of the

crime are clear from the indictment or the factual resume, a complete review of these documents in

the presence of the defendant is sufficient to inform the defendant of the nature of the charges. See

United States v. Green, 882 F.2d 999, 1005 (5th Cir. 1989) (“For simple charges. . . a reading of the

indictment, followed by an opportunity given the defendant to ask questions about it will usually

suffice . . .. In the case of charges of extreme complexity, an explanation of the elements of the

offense like that given the jury in its instructions may be required; this, of course, is the outer limit.”)

(quoting United States v. Dayton, 604 F.2d 931, 938 (5th Cir. 1979)). Here, the district court

requested that the prosecutor read the pertinent portions of the indictment and the factual resume at

the Rule 11 colloquy. The description of the offense in both documents contained all of the elements

of a narcotics conspiracy. McCarver confirmed that he understood the nature of the charges. The

district court’s actions satisfy the requirements of Rule 11(c)(1).

McCarver also contends that his conviction was invalid because the government failed to
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provide an adequate factual basis from which to conclude that he committed the charged offense.

See Fed. R. Crim. P. 11(f). An indictment, if sufficiently specific, can constitute an adequate factual

basis for a guilty plea. See United States v. Hinojosa-Lopez, 130 F.3d 691, 695 (5th Cir.1997).

Since McCarver’s indictment contained detailed information about the specific acts that constituted

the charged conspiracy, McCarver hasfailed to demonstrate that the district court clearly erred in its

determination that a factual basis sufficient to support his guilty plea existed. See United States v.

Adams, 961 F.2d 505, 509 (5th Cir. 1992)

Finally, McCarver allegestwo errorsin calculating hissentence: (1) that there wasinsufficient

proof to support the quantity of drugs attributed to him; and (2) that his sentence was improperly

enhanced for the use of a juvenile. McCarver knowingly and willingly waived his right to appeal

these issuesin the written and signed plea agreement. See United States v. Melancon, 972 F.2d 566,

567 (5th Cir. 1997); United States v. Portillo, 18 F.3d 290, 292-93 (5th Cir. 1994). At the plea

colloquy, the district court specifically explained to McCarver that the plea agreement provided that

he was waiving hisright to appeal hissentence. Consequently, McCarver is barred from raising these

sentencing issues in the present appeal.

Accordingly, the judgment ofthe district court is AFFIRMED. Because the district court has

already granted McCarver permission to appear pro se in this appeal, McCarver’s motion to proceed

pro se is DENIED as unnecessary. His motion to file a reply brief out of time is DENIED. See Fed.

R. App. P. 31(a); 5th Cir. R. 31.4.1.