### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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 distric t 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 e s t ablish that he knew that the means of identification he used belonged to a real person. Because Buchanan failed to object in the district U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Janu ary8, 201 3 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-20918 Document: 00512105562 Page: 1 Date Filed: 01/08/2013No. 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 i s whether there is an adequate factual basis i n th e r e c ord 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; F E D

. R. C R I M

. P. 11(b)(3). “[I]nferences may b e ‘fairly drawn’ from the evidence adduced after the acceptance of a guilty ple a but before or at sentencing.” United States v. Hildenbrand , 527 F.3d 466, 475 (5th Cir. 200 8). To establish aggr avated identity thef t, the Government must prove that Buchanan (1) knowingly u s e d (2) the “means of identification” belonging to another person (3) withou t l a wful 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, th e G overnment must prove that the de f

e n d a nt 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 distric t court to fairly dra w 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 th at Buchanan “knowingly and without legal authority used a means o f identification of another, that is, names, birth dates, a n d the social security numbers assigned to the individuals listed below, during and in relation to [bank fraud].” The indictment then stated that the initials o f one of the individuals

was “R.F.” and it also s e t f o rth 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 tr a n s f erred, possessed, or used without lawful authority a means of identification of another
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person.” Finally, the factual basis set f o rth 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 i nference 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 plai nly erred in failing to admonish him on an element of the offense of aggravated i d e ntity 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. F E D

. R. C R I M

. 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 th e 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. 199 7)).

Smi th als o suc cinc tly dis tinguis hes the tw o unpub lis hed cas es upon wh ich Buchana n 1 reli es : Uni ted States v. Ka y o de , 381 F. App ’x 323 (5th Cir. 2010) (unp ublis hed) and Uni ted States v. Ogbe mud ia , 364 F. App ’x 72 (5th Cir. 2010) (unp ublis hed)

. Smi th note s that in both of thes e c a s es , the Go vernm ent conf es se d err or and agree d that the fac tual bas is wa s ins uff icie nt to sup port he convic tio n. 416 F. App ’x at 420. “H ere , the Go vernm ent has mad e no suc h c once ss ion

. . . .” Id. 3 Case: 11-20918 Document: 00512105562 Page: 3 Date Filed: 01/08/2013No. 11-20918

Even if we were to conclu d e 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 p r ov e th at Buchanan knew that the means of identification he used b e l o n g e d to a real person, there is no evidence that this lack of specific i nf

o r m ation affected Buchanan’s decision to plead guilty. See United States v. Smith , 184 F.3d 415, 417 (5th Cir. 1999) (finding th at 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 Un i ted 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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