United States Court of Appeals

Fifth Circuit

FILED

September 11, 2006

Charles R. Fulbruge III

Clerk

REVISED SEPTEMBER 28, 2006

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-40850

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JORGE EDUARDO CASTRO-TREVINO

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before KING, GARWOOD, and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge:

Jorge Eduardo Castro-Trevino (Castro-Trevino) appeals his

conviction for 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.

Castro-Trevino asserts that his guilty plea was not supported by a

sufficient factual basis because his offending conduct only
2

amounted to an attempt to export ammunition, rather than actual

exportation. He asks that his guilty plea be vacated and the

matter remanded so that he may plead anew. We decline to do so,

but modify the judgment to reflect conviction for attempted

exportation only and affirm the judgment as so modified.

Facts and Proceedings Below

The facts in this case are undisputed. As reflected by the

presentence report (PSR), to which appellant’s counsel stated at

sentencing he had no objections, on December 15, 2004, special

agents from the United States Bureau of Immigration and Customs

Enforcement (ICE) observed Castro-Trevino, accompanied by his

three children, purchase a large quantity of ammunition from the

Wal-Mart Super Center store in Brownsville, Texas. Later that

day, Castro-Trevino attempted to return to the Republic of Mexico

via the Gateway International Bridge. When ICE agents inspected

the vehicle, Castro-Trevino denied possession of currency in

excess of $10,000, firearms, or ammunition. Castro-Trevino was

then referred to the secondary inspection area, at which time

Castro-Trevino admitted to possessing ammunition in the vehicle. 

Agents then discovered undeclared, assorted ammunition hidden in

the car. The PSR described this series of events by stating:

“Castro-Trevino attempted to export the ammunition through the

Gateway International Bridge but was detained by ICE agents.” 
3

In total, the agents found thirty boxes, or 11,500 rounds,

of ammunition: twenty boxes of .22 caliber bullets; three boxes

of .357 magnum bullets; three boxes of 9 mm bullets; three boxes

of .380 automatic bullets; and one box of .25 automatic bullets. 

After being read his Miranda rights, Castro-Trevino admitted

that he had entered the United States from Mexico solely to

purchase the ammunition, and that he knew it was illegal to

export ammunition from the United States to Mexico. CastroTrevino admitted further that he was hired to purchase the

ammunition and export it but refused to disclose who had hired

him, taking full responsibility for his actions. Castro-Trevino

claimed that he was to receive approximately $45 for every box of

.22 caliber rounds he successfully exported into Mexico but, as

of that time, was not to receive payment for the other ten boxes

of ammunition.

Castro-Trevino then admitted to previously exporting, one

month before, a load of ammunition into Mexico from the United

States for a payment of approximately $1,000. Agents

corroborated this statement by way of a Treasury Enforcement

Communications System search and a receipt found in CastroTrevino’s car for ammunition purchased on that previous date.
1The indictment reads as follows: 

“On or about December 15, 2004, in the Southern District of Texas,

and within the jurisdiction of the Court, Defendant Jorge Eduardo

Castro-Trevino did knowingly and willfully export and cause to be

exported from the United States to Mexico a defense article, that is

11,500 rounds of assorted ammunition which was designated as a

defense article on the United States Munitions List, without having

first obtained from the Department of State a license for such

export or written authorization for such export.

In violation of Title 22, United States Code, Sections

2778(b)(2) and 2778(c), and Title 22, Code of Federal Regulations,

Sections 121.1, 123.1(a) and 127.3, and Title 18 United States Code,

Section 2.”

222 U.S.C. §§ 2778(b)(2) and (c) read, in pertinent part:

(b)(2) Except as otherwise specifically provided in regulations . .

. no defense articles or defense services designated by the

President under subsection (a)(1) of this section may be exported or

imported without a license for such export or import, issued in

accordance with this chapter and regulations issued under this

chapter. . . .

(c) Any person who willfully violates any provision of this section

or section 2779 of this title, or any rule or regulation issued

under either section . . . shall upon conviction be fined for each

violation not more than $1,000,000 or imprisoned not more than ten

years, or both.

322 C.F.R. § 121.1 comprises the United States Munitions List, which lists

the items designated as defense articles and subject to the requirements of 22

U.S.C. § 2778. 

422 C.F.R. § 123.1(a) provides: 

“Any person who intends to export or to import temporarily a defense

article must obtain the approval of the Directorate of Defense Trade

Controls prior to the export or temporary import . . . .”

4

On January 11, 2005, the grand jury returned a one-count

indictment1 charging Castro-Trevino with the offense of knowingly

and willfully exporting from the United States to Mexico

ammunition designated as a defense article on the United States

Munitions List, without first acquiring a license or written

authorization from the State Department, in violation of 22

U.S.C. §§ 2778(b)(2) and (c);2 22 C.F.R. §§ 121.1,3 123.1(a),4 and
522 C.F.R. § 127.3 provides, in pertinent part:

“Any person who willfully . . . [v]iolates any provision of section

38 or section 39 of the Arms Export Control Act (22 U.S.C. 2778 and

2779), or any undertaking specifically required by part 124 of this

subchapter . . . shall upon conviction be subject to a fine or

imprisonment, or both, as prescribed by 22 U.S.C. 2778(c).”

6 18 U.S.C. § 2 provides:

“(a) Whoever commits an offense against the United States or aids,

abets, counsels, commands, induces or procures its commission, is

punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly

performed by him or another would be an offense against the United

States, is punishable as a principal.”

5

127.3;5 and 18 U.S.C. § 2.6 On February 18, 2005, before a

United States Magistrate Judge, Castro-Trevino entered a plea of

guilty to the offense alleged in the indictment. There was no

plea agreement. The magistrate judge then issued his Report and

Recommendation that the district court accept the guilty plea.

On May 24, 2005, the district court in open court adopted

the Report and Recommendation, accepted the guilty plea and found

Castro-Trevino guilty of the offense charged in the indictment,

counsel for the government and for appellant each stating they

had no objection and appellant personally stating there was no

reason his plea should not be accepted. The PSR, as to which

counsel for each party stated there were no objections,

determined that, under U.S.S.G. § 2M5.2(a)(1), Castro-Trevino’s

base offence level was twenty-six, but three levels were deducted

due to Castro-Trevino’s acceptance of responsibility. Therefore,

combined with his category I criminal history, the applicable

guideline range was between forty-six and fifty-seven months. 

Castro-Trevino filed an unopposed motion for a downward departure
7To describe the dangerous nature of the act to which Castro-Trevino

pleaded guilty, the sentencing court noted: 

“It may be true that this wasn’t harmful to the security interest of

the United States, but it’s not a mandatory downward departure on

the court. I choose not to do it. I think this is a very dangerous

act. It’s the second time he’s done it. Taking 11,000 rounds of

ammunition into a situation in Mexico here on the border where it’s

already . . . a dangerous situation . . . with rival gangs harming

each other and innocent people, and so I’m not granting it.”

8No fine was imposed, and on the government’s motion the $100 special

assessment was remitted. 

6

based upon U.S.S.G. § 2M5.2, comment (n.1), which allows a

downward departure when the offense is determined to be not

harmful, or without the potential to be harmful, to a security or

foreign policy interest of the United States.

The district court denied the motion for downward departure

for three primary reasons: Castro-Trevino had his children with

him at the time he was apprehended; Castro-Trevino had admitted

in open court to previously engaging in the same criminal

activity, albeit without the knowledge of law enforcement

officials; and it was a very dangerous act.7 The district court

then sentenced Castro-Trevino to forty-six months’ imprisonment

and three years of supervised release.8

Castro-Trevino timely appealed, contending that there was an

insufficient factual basis for his guilty plea in violation of

Federal Rule of Criminal Procedure 11(b)(3), in that the evidence

shows only an attempt to export, not a completed exportation as

charged in the indictment. 

Discussion
9 See McCarthy, 89 S.Ct at 1174; United States v. Johnson, 1 F.3d 296, 297

(5th Cir. 1993)

10FED.R.CRIM.P. 11(h) provides: “A variance from the requirements of this

rule is harmless error if it does not affect substantial rights.”

7

A. Standard of Review

Guilty pleas are reviewed for compliance with Rule 11. 

United States v. Reasor, 418 F.3d 466, 470 (5th Cir. 2005);

United States v. Marek, 238 F.3d 310, 314 (5th Cir. 2001) (en

banc). Rule 11(b)(3) requires that “[b]efore entering judgment

on a guilty plea, the court must determine that there is a

factual basis for the plea.” The Supreme Court in McCarthy v.

United States explained: 

“Requiring this examination of the relation between the

law and the acts the defendant admits having committed

is designed to ‘protect a defendant who is in the

position of pleading voluntarily with an understanding

of the nature of the charge but without realizing that

his conduct does not actually fall within the charge.’”

89 S.Ct. 1166, 1171 (1969) (quoting Fed.R.Crim.P. 11,

Notes of Advisory Committee on Criminal Rules). 

The factual basis for the guilty plea “must appear in the record

. . . and must be sufficiently specific to allow the court to

determine that the defendant’s conduct was within the ambit of

that defined as criminal.” United States v. Oberski, 734 F.2d

1030, 1031 (5th Cir. 1984). Historically, any failure in Rule 11

procedures surrounding a guilty plea was considered to be

irreparable error warranting automatic reversal.9 In 1983,

however, Rule 11(h)10 was promulgated, and the Supreme Court has
8

since shown reluctance to overturn pleas unless prejudice can be

shown on the record as a whole. See United States v. Vonn, 122

S.Ct 1043, 1054–55 (2002); United States v. Dominguez Benitez,

124 S.Ct. 2333, 2339 (2004). Cf. United States v. Timmreck, 99

S.Ct 2085, 2087–88 (1979) (challenge under 28 U.S.C. § 2255). 

Because Castro-Trevino objects to the Rule 11 error for the

first time on appeal, this court must review for plain error

only. Vonn, 122 S.Ct at 1046; Marek, 238 F.3d at 315. Under

plain error review, Castro-Trevino bears the burden to show that

(1) there is an error; (2) the error is clear and obvious; and

(3) the error affects his substantial rights. Marek, 238 F.3d at

315. The relief for error is tied to a prejudicial effect, so

the error must have had a “‘substantial and injurious effect or

influence in determining the . . . verdict.’” Dominguez Benitez,

124 S.Ct. at 2335 (citing Kotteakos v. United States,66 S.Ct.

1239, 1253 (1946)); FED.R.CRIM.P. 52(b). Further, even if CastroTrevino establishes clear error, we will not vacate the judgment

unless the error “seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Marek, 238 F.3d at

315; see also United States v. Olano, 113 S.Ct. 1770, 1778–79

(1993). To show prejudice, Castro-Trevino “must show a
11The Court in Dominguez Benitez described the reasons supporting these

requirements as follows: 

“First, the standard should enforce the policies that underpin Rule

52(b) generally, to encourage timely objections and reduce wasteful

reversals by demanding strenuous exertion to get relief for

unpreserved error. Second, it should respect the particular

importance of the finality of guilty pleas, which usually rest,

after all, on a defendant's profession of guilt in open court, and

are indispensable in the operation of the modern criminal justice

system. And . . . these reasons are complemented by the fact, worth

repeating, that the violation claimed was of Rule 11, not of due

process.” Dominguez Benitez, 124 S.Ct. at 2340 (internal citations

omitted).

12 See supra note 1.

13The record reflects that Castro-Trevino never left the United States with

his intended exports. When a word is not specifically defined within a statute,

that term “must therefore be given [its] ordinary and natural meaning. . . .

[and] ‘[d]ictionaries are a principal source for ascertaining the ordinary

meaning of statutory language.’” United States v. Elrawy, 448 F.3d 309, 312 (5th

Cir. 2006) (quoting United States v. Orellana, 405 F.3d 360, 365-66 (5th

Cir.2005)). Consequently, “Export” is defined as “To carry or send abroad.”

Black’s Law Dictionary 579 (6th ed. 1990). “Abroad” is defined as “In a foreign

country or countries.” The American Heritage College Dictionary 4 (3d ed. 1997).

9

reasonable probability that, but for the error, he would not have

entered the plea.” Dominguez Benitez, 124 S.Ct. at 2336.11

Because both parties agree that the record lacks a factual

basis for Castro-Trevino’s guilty plea, the first two prongs of

the plain error review are satisfied. In short, contrary to the

charge in the indictment to which Castro-Trevino pleaded

guilty,12 the facts are that he attempted to export a defense

article from the United States to Mexico but did not succeed in

doing so; there was no evidence he actually exported13 or aided

and abetted anyone who did so. However, the issue remains

whether Castro-Trevino’s substantial rights were adversely

affected. 
10

The government contends that Castro-Trevino’s substantial

rights were not affected and he would have entered his plea

notwithstanding the Rule 11 error of which he now complains. 

B. Attempted Exportation

While “[t]o attempt a federal offense is not, of itself, a

federal crime,” and there is no one general federal statute

proscribing all attempts to commit federal offenses, see United

States v. York, 578 F.2d 1036, 1038 (5th Cir. 1978), it is

nevertheless clear that attempted exportation without a license

of a defense article on United States Munitions List constitutes

a federal crime, namely a violation of 22 U.S.C. § 2778(c). 

Section 2778(c) provides that “[a]ny person who willfully

violates any provision of this section or section 2779 of this

title, or any rule or regulation issued under either section . .

. shall upon conviction be fined for each violation . . . or

imprisoned not more than ten years, or both” (emphasis added),

and 22 C.F.R. § 127.1(a)(1), a regulation issued under 22 U.S.C.

§ 2778, provides (and at all relevant times provided) that “It is

unlawful: (1) To export or attempt to export from the United

States any defense article . . . for which a license or written

approval is required . . . without first obtaining the required

license or written approval . . .” (emphasis added). Indeed, we

have on at least two occasions affirmed convictions of violating

section 2778 by attempted exportation of defense articles on the
14See Covarrubias at 175: “To sustain a conviction under 22 U.S.C. § 2778,

the government must prove beyond a reasonable doubt that the defendant willfully

exported or attempted to export defense articles that are on the United States

Munitions List without a license.”

15Rule 31(c) provides:

“(c) Lesser Offense or Attempt. A defendant may be found guilty of

any of the following:

(1) an offense necessarily included in the offense charged;

(2) an attempt to commit the offense charged; or

(3) an attempt to commit an offense necessarily included in

the offense charged, if the attempt is an offense in its own right.”

11

United States Munitions List without a license. United States v.

Covarrubias, 94 F.3d 172 (5th Cir. 1996); United States v. OrtizLoya, 777 F.2d 973, 978, 980 (5th Cir. 1985). 

Since such attempted exportation contrary to section 2778 is

a federal crime, it is obvious that it is a lesser included

offense of actual exportation contrary to section 2778. The

elements are the same except that the latter offense requires

that the defense articles actually leave the United States.14 In

order to willfully export ammunition in violation of section 2778

one must also attempt to do so; one must willfully attempt to

cause with the ammunition to cross the border before succeeding

in doing so. Accordingly, under a charge of exportation contrary

to section 2778 a defendant may properly be found guilty of

attempting to export contrary to section 2778 under the

provisions of Rule 31(c) even though attempt is not alleged in

the indictment.15 “Under FED. R. CRIM. P. 31(c) a defendant may be

found guilty of an attempt to commit a substantive offense,

whether or not the attempt was charged in the indictment,
12

provided an attempt is punishable.” United States v. Marin, 513

F.2d 974, 976 (2d Cir. 1975). See also, e.g., United States v.

Brozyna, 571 F.2d 742, 746 (2d Cir. 1978) (conviction on

indictment alleging acquisition, though proof showed only

attempted acquisition, does not violate defendant’s “right to be

tried only on charges presented in an indictment” because “Rule

31(c) . . . permits a conviction for attempt even when the

indictment charges only the completed act”); United States v.

Pino, 608 F.2d 1001, 1003 (4th Cir. 1979) (indictment charging

distribution of heroin would support conviction “on an attempt

theory”); United States v. Remigio, 767 F.2d 730, 733 (10th Cir.

1985) (“The crime of attempt is a lesser included offense of the

substantive offense” and “proof of the substantive crime at trial

was proof of the lesser included offense of attempt”); United

States v. Gaskin, 364 F.3d 438, 453 (2d Cir. 2004); 2 LAFAVE,

SUBSTANTIVE CRIMINAL LAW (2ND ED) § 11.3(c), at 249 (“The courts are

in general agreement that an attempt conviction may be had on a

charge of the completed crime . . . .”). We also have so

recognized. See United States v. York, 578 F.2d 1036, 1040 (5th 

Cir. 1978) (“attempt is an offense included in the completed

crime”). When the facts support conviction of a lesser-included

offense we can generally modify the judgment to reflect the
16For example, in Brozyna the defendant was found guilty by the jury on an

indictment charging that she used false identification in “the acquisition of a

firearm,” but the evidence showed she never acquired the firearm but only

attempted to do so. She moved for judgment of acquittal on this basis. The

indictment did not allege attempt and the district court did not instruct the

jury on attempt. The court reserved decision on the motion until the jury

returned its verdict, after which the motion was granted. On the government’s

appeal, the Second Circuit reversed and ordered that judgment of guilty be

entered in accordance with the verdict. The Court of Appeals noted that even if

the statute, in denouncing the use of false identification in “the acquisition

or attempted acquisition” of a firearm, “creates separate offenses, under Rule

31 this defense [that the firearm had not actually been acquired] could not have

prevented a conviction for using false identification in connection with an

attempted acquisition. That offense would be subject to the same penalty. . .

.” Id. at 746. 

See 28 U.S.C. § 2106 (providing: "The Supreme Court or any other court of

appellate jurisdiction may affirm, modify, vacate, set aside or reverse any

judgment, decree, or order of a court lawfully brought before it for review, and

may remand the cause and direct the entry of such appropriate judgment, decree,

or order, or require such further proceedings to be had as may be just under the

circumstances."); United States v. Hunt, 129 F.3d 739, 744-46 (5th Cir. 1997);

United States v. Bailey, 691 F.2d 1009, 1019 (11th Cir. 1982) ("Both parties in

their respective briefs acknowledge that [defendant] was only convicted of the

lesser included offense of simple possession of cocaine on count two. The

Judgment Order reads, ‘Defendant has been convicted as charged of the offense(s)

of ... possessing with intent to distribute a Schedule II controlled substance

(sic). . . .' This is plain error of which this court may take cognizance. On

remand, the district court is instructed to reform the Judgment Order to record

accurately the offenses for which [defendant] was convicted.") (internal

citations omitted).

13

lesser offense without detrimentally affecting the defendant’s

rights.16

C. Angeles-Mascote and Dominguez Benitez

Both parties call our attention to United States v. AngelesMascote, 206 F.3d 529 (5th Cir. 2000). In Angeles-Mascote, the

defendant was charged with knowingly entering and being found in

the United States after deportation, contrary to 8 U.S.C. § 1326. 

The defendant pleaded guilty to that charge but argued on appeal

the Rule 11 evidence showed that he only attempted entry, and
14

could not have been “found in” the United States since he never

actually entered. Id. at 531. Under plain error review, this

court vacated the guilty plea because the evidence was

insufficient to show that the defendant had actually entered: 

“The appropriate indictment . . . would have been to

charge [defendant] with attempting to enter the United

States after previously being deported . . . there is a

clear distinction between actual entry into the United

States, and attempted entry. [citation] That distinction

being that ‘actual entry’ has been found by most courts

to require both physical presence in the country as well

as freedom from official restraint, while ‘attempted

entry’ only requires that the person approach a port of

entry and make a false claim of citizenship or nonresident alien status.” Id. 

This court held that the government’s failure to charge the

correct offense in the indictment could not be harmless since

“[a]n indictment is intended to provide notice to the defendant

that allows him to intelligently consider his defense or plea.”

Id. at 532. This court also found “unpersuasive” the

government’s argument that “even if the factual basis is

insufficient none of [the defendant’s] substantial rights were

affected because a charge of attempted entry provides for the

same statutory maximum sentence as a charge of actual entry.” Id.

It is not clear that the Angeles-Mascote panel regarded

“attempted entry” as a lesser included offense of the charged

section 1326 offense, as the panel apparently viewed the

attempted entry offense as requiring the making of “a false claim

of citizenship or non-resident alien status.” Id. at 531. In
17Vonn, 122 S.Ct at 1046 (holding that “a silent defendant has the burden

to satisfy the plain-error rule and that a reviewing court may consult the whole

record when considering the effect of any error on substantial rights.”)

18Dominguez Benitez, 124 S.Ct. at 2336 (holding that ”a defendant is

obliged to show a reasonable probability that, but for the error, he would not

have entered the [guilty] plea.”)

15

any event, Angeles-Mascote was decided without the benefit of the

Supreme Court’s decisions in Vonn17 and Dominguez Benitez,

18 and

necessarily must be construed in light of those cases. Indeed,

the Supreme Court in Dominguez Benitez stresses: 

“[T]he point . . . is not to second-guess a defendant’s

actual decision [to plead guilty]; if it is reasonably

probable he would have gone to trial absent the error,

it is no matter that the choice may have been foolish.

The point, rather, is to enquire whether the omitted

[Rule 11 procedure] would have made the difference

required by the standard of reasonable probability.”

Dominguez Benitez, 124 S.Ct. at 2341. 

Dominguez Benitez holds further:

“[A] defendant who seeks reversal of his conviction after

a guilty plea, on the ground that the district court

committed plain error under Rule 11, must show a

reasonable probability that, but for the error, he would

not have entered the plea. A defendant must thus satisfy

the judgment of the reviewing court, informed by the

entire record, that the probability of a different result

is ‘sufficient to undermine confidence in the outcome’ of

the proceeding.” Id. at 2340 (internal citations

omitted).

Dominguez Benitez necessarily modifies our reasoning in AngelesMascote by increasing the burden for defendants in situations

similar to Castro-Trevino’s. As such, Castro-Trevino must

demonstrate both that his substantial rights were adversely
16

affected and that he would not have entered his guilty plea but

for the error. 

D. Conviction of Lesser-Included Offense Does Not Affect CastroTrevino’s Substantial Rights

As noted, 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). As stated in United States v. Thompson, 680 F.2d 1145,

1155 (7th Cir. 1982):

“The purpose of requiring a factual basis for a plea as

now stated in Rule 11(f) and as included in the 1966

amendment to the Rules is to assure the court that the

conduct which the defendant admits by his plea of

guilty constitutes the offense charged in the

indictment or a lesser offense included therein.”

Here, during the Rearraignment, the Rule 11 hearing transcript

describes the following exchange, with appellant (a college

graduate engineer) under oath (under penalty of perjury):

U.S. Attorney: “The facts would show, Your Honor, that on

December 15th, 2004, Customs and Border Protection

officers observed the Defendant purchase a large amount

of assorted ammunition at a Wal-Mart store in

Brownsville, Texas. Agents conducted surveillance as the

Defendant attempted to export the ammunition out of the

United States to Mexico through the Gateway port of

entry, Brownsville, Texas. Further inspection fo the

Defendant’s car revealed three Wal-Mart bags hidden

underneath a blanket that contained a total of 11,500

rounds of assorted ammunition. The ammunition is an

article that is listed on the United States munitions

list. The Defendant attempted to export the ammunition

without obtaining a license. The Defendant acted
17

willfully in exporting the ammunition. The Defendant

stated that he knew it was illegal to export the

ammunition because he had seen the sign at the bridge

where it said that it’s illegal to cross firearms and

ammunition to Mexico.”

The Court: “Is that what happened, sir?”

Castro-Trevino: “Yes, sir.” 

The Court: “I’m going to recommend that your plea be

accepted.” (emphasis added).

Plainly, the Rule 11 hearing reflects appellant’s guilt of

the offense of attempted exportation contrary to section 2778(c).

E. Failure to Allege 22 C.F.R. § 127.1.

Castro-Trevino contends that because 22 C.F.R. § 127.1 was

omitted from the indictment it cannot be used to show that

attempt to export is a lesser-included offense and renders the

indictment deficient to support a conviction on that basis. 

However, we conclude that the fact that 22 C.F.R. § 127.1 was not

cited in the indictment as one of the regulations violated by

Castro-Trevino’s conduct is not a sufficient cause for us to

vacate his guilty plea. Rule 7(c)(3) of the Federal Rules of

Criminal Procedure provides: 

“Unless the defendant was misled and thereby

prejudiced, neither an error in a citation nor a

citation’s omission is a ground to dismiss the

indictment or information or to reverse a conviction.”

See, e.g., United States v. Boyett, 923 F.2d 378, 378–79 n. 1

(5th Cir. 1990) (conviction not reversed where indictment cited

incorrect statute, because "[t]he error was not one that could
19This court has also stated that “[p]ractical rather than technical

considerations govern resolution of [indictment] challenges and we will not

reverse for minor deficiencies which do not prejudice the accused." United States

v. Steen, 55 F.3d 1022, 1027 (5th Cir. 1995) (citing United States v. Chappell,

6 F.3d 1095, 1099 (5th Cir. 1993) ("An indictment need only charge the essential

elements of the offense, permitting the accused to prepare a defense . . . .").

See also United States v. Nevers, 7 F.3d 59, 63 (5th Cir.1993) (indictment

sufficient if it "describe[s] the specific facts and circumstances surrounding

the offense in question in such manner as to inform the defendant of the

particular offense charged"); United States v. Shelton, 937 F.2d 140, 142 (5th

Cir. 1991) ("An indictment is sufficient if it contains the elements of the

offense charged [and] fairly informs the defendant what charge he must be

prepared to meet . . . .”).

18

have reasonably misled the defendant to his prejudice"); Schmidt

v. United States, 286 F.2d 11, 12 (5th Cir. 1961) (finding that

judgment could not be vacated simply because the indictment

referred to the wrong subsection of the offense statute where

“[a]ppellant was represented by counsel and the indictment

adequately and positively alleged facts constituting a crime

under the offense statute.... Under these circumstances it is

highly doubtful that [defendant] was misled at all.”).19 CastroTrevino makes no allegations that he was misled to his prejudice

in this respect nor is any such prejudice apparent. Consequently,

omission of the regulatory provision’s citation by itself is not

a sufficient basis on which to vacate Castro-Trevino’s guilty

plea. 

F. Sentencing Considerations did not Violate CastroTrevino’s Substantial Rights

Castro-Trevino also argues that his substantial rights were

adversely affected because had the charge read “attempted

exportation” he would have been eligible for a lower sentence. 
19

We conclude, however, that there was no potential effect on

sentencing. The same statutory range is applicable. Section

2778(c). See note 2 supra. He asserts that he may have been

eligible for a three-level reduction under U.S.S.G. § 2X1.1,

entitled “Attempt, Solicitation, or Conspiracy (Not Covered by a

Specific Offense Guideline)”, because it was only an attempt to

carry out the prohibited behavior. However, the government

argues that U.S.S.G. § 2X1.1(b)(1) does not, and would not, apply

to Castro-Trevino's case for two distinct reasons: (a) this

provision only applies to attempts which are not included within

the offense guideline; and (b) attempts do not warrant a

three-level reduction when "defendant was about to complete all

such acts but for apprehension or interruption by some similar

event beyond the defendant's control." U.S.S.G. § 2X1.1(b)(1). 

First, the government contends that § 2M5.2 includes

attempts to commit a violation of 22 U.S.C. §2778(c) since it

covers the entire offense, which by its terms includes all the

regulations issued thereunder. As discussed supra, 22 C.F.R §

127.1(a)(1), issued under 22 U.S.C. § 2778(a), provides: "It is

unlawful to export or attempt to export from the United States

any defense article . . . for which a license or written approval

is required . . . ." Therefore, it is contended, § 2X1.1 does

not apply to this offense because the attempt is already included

within the ambit of § 2M5.2 since it is, by way of 22 C.F.R.
20See 18 U.S.C. § 371. Conspiracy to commit the act prohibited by section

2778 requires the additional element of agreement between “two or more persons”

whereas 22 U.S.C. §2778 applies to “any person.” “[A] conspiracy conviction may

not be obtained on a charge of the completed crime.” 2 LAFAVE, SUBSTANTIVE CRIMINAL

LAW (2ND ED) § 12.4(d) at 322; Braverman v. United States, 63 S.Ct. 99 (1942). 

20

§127.1, a primary violation of the statute dealt with by § 2M5.2. 

We need not resolve this contention, because we agree with the

government’s second contention, namely that the sole reason

Castro-Trevino was not able to export the ammunition was due to

his apprehension by ICE agents at the border. His voluntary

confession did not cause his apprehension or interruption of the

event because ICE agents had been monitoring his purchases that

day. Thus, under § 2X1.1(b)(1) the three level reduction is not

available. 

Additionally, contrary to Castro-Trevino’s assertions,

U.S.S.G. § 2X1.1(b)(2) does not apply because the indictment does

not allege conspiracy and conspiracy is not a lesser-included

offense of the offense charged.20

Finally, Castro-Trevino received the lowest sentence within

the applicable guideline range and the statutory range remains

the same. There is no indication here that Castro-Trevino was

prejudiced by receiving a longer sentence than he would have had

the charge expressly and only been for attempted exportation or

that he was denied any real opportunity to receive a shorter

sentence. 

Conclusion
21

Castro-Trevino has failed to demonstrate that but for the

Rule 11 error, he would not have entered his guilty plea, as

required by Dominguez Benitez. The same statutory and guideline

sentencing range applied. There is no indication he would have

received a reduced sentence, the indictment gave sufficient

notice as to the charges pending against him, and the factual

record accepted by both parties and relied upon by both the

district court and the magistrate judge indicated the full nature

of his offense. In short, after reviewing the record and CastroTrevino’s arguments, we are not satisfied that “the probability

of a different result is ‘sufficient to undermine confidence in

the outcome’ of the proceeding.” Dominguez Benitez, 124 S.Ct. at

2340. Our confidence in the proceeding’s outcome is simply not

undermined here. Castro-Trevino has admitted under oath that he

attempted to export ammunition in violation of the law,

voluntarily pleaded guilty to that prohibited behavior, and had

every opportunity in the court below to raise the points he

brings up for the first time on appeal. 

Consequently, this court modifies the judgment in accordance

with this opinion to reflect conviction for attempted exportation

of ammunition rather than the completed offense, and affirms the

judgment as so modified.

For the foregoing reasons, the judgment of the district

court is 
22

AFFIRMED 

as modified.