### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40607 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. JULIO CESAR MARTINEZ, Defendant - Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 5:12-CR-37-1

Before DAVIS, BARKSDALE, and ELROD, Circuit Judges. PER CURIAM: * Julio Cesar M artinez pleaded guilty to: c onspiracy to possess, with intent to distribute, 500 grams or more of cocaine, in violation o f 21 U.S.C. § 846 (count one); and possession, with intent to distribute, 500 grams or more o f c o caine, in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(B) (count two). He was sentenced, inter a lia , to: concurrent terms o f 84 m onths’ imprisonment, and a $2,000 fine. M artinez contends the district court committed reversible p lain error i n accepting his guilty plea on count one (conspiracy to possess with the intent to U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D May8, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-40607 Document: 00512234962 Page: 1 Date Filed: 05/08/2013No. 12-40607

distribut e m o r e t h an 500 grams of cocaine) because the factual basis was insufficient to support his guilty plea for conspiracy. H e maintains th e factual basis failed to establish the existence of any agreement between him and another person, w hich is a n ecessary element of conspiracy. The G overnment concedes error, acknowledging the factual basis was insufficient. It agrees that, under the applicable plain-error standar d o f review discussed below, the conviction and sentence for that count should be vacated. Because Martinez did not object in district court to the sufficiency of the factual basis, review is only for plain error. E.g. , United States v . Palmer , 456 F.3d 484, 4 89 (5th C i r . 2 0 0 6)

. For reversible plain error, Martinez must show

a forfeited error that i s clear or obvious, a nd that affected his substantial rights. E.g. , Puckett v. United States , 556 U.S. 129, 135 (2009). To show his substantial rights were affected, Martinez must d e monstrate “a reasonable probability that, but f or the error, he would no t have entered the p lea”. United States v. Dominguez Benitez , 542 U .S. 74, 83 (2004). If h e m a k e s s u c h a s howing, our court will exercise its discretion to correct the error o nly if it “seriou s l y a f f e c t s the fairness, integrity, or public reputation of judicial proceedings”. Puckett , 556 U.S. at 135 (internal quotation marks and citation omitted). Martinez and the G overnment are c orrect that the factual basis t o which Martinez a greed did not establish the e xisten c e of an agreement between him and another person to violate the narcotics l aws. See U nited States v . Valdez , 453 F.3d 252, 256-57 (5th C ir. 2006) (conspiracy requires defendant’s knowledge of and voluntary participation in agreement between two or m ore persons). Accordingly, the district court committed plain (clear or obvious) error. See F E D

. R. C R I M

. P. 11(b)(3) (court must determine there i s factual basis before accepting guilty p l ea); U

nited States v. Garcia-Paulin , 627 F .3d 127, 133-34 (5th Cir. 2010). Because there is a reasonable probability that Martinez would not have entered his guilty plea if he realized the factual basis did not support a conviction for conspiracy, the error affected his substantial rights. See Garcia2 Case: 12-40607 Document: 00512234962 Page: 2 Date Filed: 05/08/2013No. 12-40607

Paulin , 627 F.3d at 134 ( defendant would n ot have pled guilty if he had known factual basis was insufficient). Finally, a guilty plea based on facts that fail to support a conviction seriousl y a f f e cts the fairness o f judicial proceedings. Palmer , 456 F.3d at 491-92. Accordingly, we exercise our discretion and vacate Martinez’ conviction on count one; this matter i s r e m a n ded for further proceedings on count one. E.g. , United States v. Carreon-Ibarra , 673 F.3d 358, 367 (5th Cir. 2012). (The conviction on count two is not challenged.) Martinez next contends his s entence on count two s hould be vacated, and the case should be r emanded for r esentencing o n both counts. He maintains the conviction on c ount one necessarily affected the district c ourt’s sentencing decision on count two; therefore, both sentences should b e v acated. In response, the Government a sserts vacating the conspiracy convict i on should have no bearing on the sentence f or count two , b e cause e ach conviction and s entence stands alone, a nd there is no reason to believe the count-one s entence affected the count-two sentence. The burden is on the Government to s how a v acated convict i o n did not affect sentencing on another count. See U nited States v. Whitfield , 590 F.3d 325, 366 (5th Cir. 2 009). Because nothing in the record shows M artinez’ sentence on count two was not affected by his invalid conviction on count one, the sentences

on both counts are vacated and the case is remanded for r esentencing following the outcome of proceedings on count one. As he did in district court, Martinez challenges the imposition of a fine as part of his sentence. I n the light of our vacating both sentences and remanding f o r r e s e n tencing, we decline to address this c laimed sentencing error. E.g. , United States v. Akpan , 407 F.3d 360, 377 n.62 (5th Cir. 2005). Martinez’ conviction for count one is VACATED; his conviction for count two is AFFIRMED; his sentence for both counts is VACATED; and this matter is REMANDED for further proceedings consistent with this opinion.

3 Case: 12-40607 Document: 00512234962 Page: 3 Date Filed: 05/08/2013