IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-20918

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RAYMOND BUCHANAN, Jr.,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:08-CR-454-1

Before JONES, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

Raymond Buchanan, Jr., pleaded guilty to one count of bank fraud and one

count of aggravated identity theft. He argues that the district court plainly

erred by failing to ensure that the factual basis established an essential element

of the offense of aggravated identity theft. Buchanan contends that the factual

basis did not establish that he knew that the means of identification he used

belonged to a real person. Because Buchanan failed to object in the district

United States Court of Appeals

Fifth Circuit

F I L E D

January 8, 2013

Lyle W. Cayce

Clerk

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.

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No. 11-20918

court, review is limited to plain error. See United States v. Marek, 238 F.3d 310,

315 (5th Cir. 2001) (en banc).

“[T]he determinative question is whether there is an adequate factual

basis in the record from which the district court could conclude as a matter of

law that [the defendant’s] conduct satisfies each element of [the offense].” Id. at

314; FED. R. CRIM. P. 11(b)(3). “[I]nferences may be ‘fairly drawn’ from the

evidence adduced after the acceptance of a guilty plea but before or at

sentencing.” United States v. Hildenbrand, 527 F.3d 466, 475 (5th Cir. 2008).

To establish aggravated identity theft, the Government must prove that

Buchanan (1) knowingly used (2) the “means of identification” belonging to

another person (3) without lawful authority (4) during and in relation to a

violation of bank fraud. See 18 U.S.C. § 1028A; United States v. Stephens, 571

F.3d 401, 404-05 (5th Cir. 2009). In Flores-Figueroa v. United States, 129 S. Ct.

1886, 1888 (2009), the Supreme Court held that in order to convict a defendant

of aggravated identity theft pursuant to § 1028A, the Government must prove

that the defendant knew that the means of identification he unlawfully

possessed actually belonged to another person.

While nothing in the record explicitly states that Buchanan knew that Roy

Fisher was a real person, the evidence was sufficient for the district court to

fairly draw that inference. See Hildenbrand, 527 F.3d at 475; see also United

States v. Smith, 416 F. App’x 416, 420 (5th Cir. 2011). The indictment charged

that Buchanan “knowingly and without legal authority used a means of

identification of another, that is, names, birth dates, and the social security

numbers assigned to the individuals listed below, during and in relation to [bank

fraud].” The indictment then stated that the initials of one of the individuals

was “R.F.” and it also set forth the individual’s social security number. 

Moreover, at rearraignment, the district court stated that the Government had

to prove beyond a reasonable doubt that Buchanan “knowingly transferred,

possessed, or used without lawful authority a means of identification of another

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person.” Finally, the factual basis set forth that the Postal Service contacted

“the true Roy G. Fisher” who lived in Michigan and that he advised the Postal

Service “that he did not apply for the loan at Wachovia Bank and he did not open

the joint checking accounts or otherwise give Mr. Buchanan permission to use

his name.” Because the district court could fairly draw the inference that

Buchanan knew that the identity he used belonged to a real person, Buchanan

fails to show that the district committed a clear or obvious error. See Marek, 238

F.3d at 315; Hildenbrand, 527 F.3d at 475; Smith, 416 F. App’x at 420.1

Buchanan also argues that the district court plainly erred in failing to

admonish him on an element of the offense of aggravated identity theft. He

contends that the district court failed to admonish him that the Government had

to prove that he knew that the means of identification used belonged to a real

person. Because Buchanan failed to object in the district court, review is limited

to plain error. See United States v. Vonn, 535 U.S. 55, 59 (2002). 

A district court is required by Rule 11 to address the defendant and inform

him of the nature of the charges. FED. R. CRIM. P. 11(b)(1)(G). The requirement

that the defendant understand the nature of the charge against him “refers to

the elements of the offense.” United States v. Lujano-Perez, 274 F.3d 219, 224

(5th Cir. 2001). While there are no precise guidelines as to what is sufficient to

meet this standard, “‘the court must have a colloquy with the defendant that

would lead a reasonable person to believe that the defendant understood the

nature of the charge.’” United States v. Reyes, 300 F.3d 555, 559 (5th Cir. 2002)

(quoting United States v. Reyna, 130 F.3d 104, 110 (5th Cir. 1997)). 

Smith also succinctly distinguishes the two unpublished cases upon which Buchanan

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relies: United States v. Kayode, 381 F. App’x 323 (5th Cir. 2010)(unpublished) and United

States v. Ogbemudia, 364 F. App’x 72 (5th Cir. 2010)(unpublished). Smith notes that in both

of these cases, the Government confessed error and agreed that the factual basis was

insufficient to support he conviction. 416 F. App’x at 420. “Here, the Government has made

no such concession . . . .” Id.

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Even if we were to conclude that the district court committed “obvious”

error in this regard, Buchanan fails to show that the error affected his

substantial rights because he does not contend that he would not have pleaded

guilty but for the court’s alleged error. See United States v. Dominguez Benitez,

542 U.S. 74, 83 (2004) (“[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”). Although the district court did not specifically state that

the Government had to prove that Buchanan knew that the means of

identification he used belonged to a real person, there is no evidence that this

lack of specific information affected Buchanan’s decision to plead guilty. See

United States v. Smith, 184 F.3d 415, 417 (5th Cir. 1999) (finding that the

defendant’s substantial rights were not affected because there was no indication

that the district court’s error affected her decision to plead guilty). Moreover,

this is not the type of case that implicates our discretion because it does not call

into question the fairness, integrity, or public reputation of judicial proceedings. 

See United States v. Olano, 507 U.S. 725, 732 (1993). Accordingly, Buchanan

cannot show plain error requiring reversal. The judgment of the district court

is therefore AFFIRMED.

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