IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40295

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

SERVANDO ALVARADO-CASAS, also known as El Chino, 

 Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before DAVIS, GRAVES, and HIGGINSON, Circuit Judges.1

HIGGINSON, Circuit Judge:

For the firsttime on appeal, Defendant-Appellant Servando Alvarado-Casas

challenges his federal guilty plea conviction of conspiracy to commit aggravated

alien transporting, arguing principally that his plea lacks an adequate factual

basis, and that the district court misadvised him as to his sentencing exposure,

rendering his plea involuntary. Concluding that the district court’s error in

accepting his guilty plea, if any, was not plain, and that its admonishment

regarding his sentencing exposure, though clear error, did not materially affect

his decision to plead guilty, we AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

May 14, 2013

Lyle W. Cayce

Clerk

1 Graves, Circuit Judge, concurs in the judgment only.

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FACTS AND PROCEEDINGS

Servando Alvarado-Casas was charged by indictment with twelve counts

of transporting unlawful aliens causing serious bodily injury to, or placing in

jeopardy the life of, any person, and one count of conspiring to commit that

offense. Pursuant to a signed plea agreement, Alvarado-Casas agreed to plead

guilty to the conspiracy count and to waive his right to appeal his conviction and

sentence in exchange for the government’s promise to dismiss the remaining

counts in the indictment and to make certain sentencing recommendations. The

plea waiver reads as follows:

Defendant waives his/her right to appeal both the conviction and the

sentence imposed. Defendant is aware that 18 U.S.C. § 3742 affords

a defendant the right to appeal the sentence imposed. The

defendant waives the right to appeal the sentence imposed or the

manner in which it was determined. The defendant may appeal only

(a) a sentence imposed above the statutory maximum; or (b) an

upward departure from the Sentencing Guidelines which had not

been requested by the United States, as set forth in 18 U.S.C. §

3742(b). Additionally, the defendant is aware that 28 U.S.C. § 2255,

affords the right to contest or “collaterally attack” a conviction or

sentence after the conviction or sentence has become final. The

defendant waives the right to contest his/her conviction or sentence

by means of any post-conviction proceeding. 

At rearraignment, the district court asked Alvarado-Casas if he had read

the plea agreement, had understood its terms, and had signed it voluntarily. 

Alvarado-Casas responded that he had. The district court admonished AlvaradoCasas that he faced up to ten years of imprisonment, and would not be allowed

to withdraw his guilty plea if the sentence imposed was more severe than he

expected. Alvarado-Casas responded that he understood. The district court

explained the elements of the conspiracy offense and asked Alvarado-Casas if he

understood them. Alvarado-Casas responded that he did. The government then

gave the following factual basis statement: 

2

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[O]n November 24th of 2009, border patrol agents advised ICE of a

motor vehicle accident in which 17 illegal aliens and the driver [of

the] vehicle had gone off an embankment, approximately a 40-foot

drop. Border patrol agents and ICE officials responded to the area.

They were able to determine that the 17 individuals that were in the

bed of the pickup truck were illegally present in the United States.

The majority were from Guatemala with, I believe, three Mexican

citizens. One driver of the vehicle was identified as Patricio

Rebollar. He, as well as the aliens were all transported to

surrounding area hospitals. . . . ICE agents spoke to Patricio

Rebollar, and he advised that he was, in fact, the driver of the

pickup trunk and that he was transporting illegal aliens. He

indicated that he was transporting the aliens for an individual that

he identified as Chino. ICE agents were able to identify the

individual that he identified as Chino as Servando Alvarado-Casas.

After confirming thatthe government’s statement was accurate, Alvarado-Casas

pleaded guilty to the conspiracy offense, and the court accepted his plea.

At sentencing, the district court adopted the presentence report (“PSR”)

and calculated Alvarado-Casas’s Guidelines range to be 188 to 235 months of

imprisonment based on a total offense level of 34 and a criminal history category

of III.2 Alvarado-Casas made a number of objections, including that separate

adjustments to his offense level for use and transportation of a minor constituted

impermissible double counting. The district court overruled the “double

counting” objection, and sentenced Alvarado-Casas to 190 months of

imprisonment. Alvarado-Casas did not file a timely notice of appeal.

In June 2008, Alvarado-Casas filed a § 2255 motion challenging his

conviction and sentence on the ground that his counsel provided constitutionally

ineffective assistance by failing to file a timely notice of appeal. After holding

an evidentiary hearing, the district court dismissed the § 2255 motion without

2 The PSR conservatively estimates that the sophisticated alien smuggling operation,

led by Alvarado-Casas with assistance from a Mexican cartel, smuggled over 2,500 unlawful

aliens to the United States over a five-year period, and received between $1,000 and $10,000

per alien.

3

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prejudice, granted Alvarado-Casas leave to file an “out-of-time” direct appeal,

and appointed counsel for that purpose.3 This appeal followed.

DISCUSSION

On appeal, Alvarado-Casas argues that: (1) his conviction lacks an

adequate factual basis because the stipulated facts did not establish that he

personally caused serious injury to, or placed in jeopardy the life of, another

person during and in relation to the offense; (2) his guilty plea was involuntary

because the district court misadvised him of the nature of the conspiracy offense

and the statutory maximum it carried and failed to ensure that he understood

the consequences of waiving his right to appeal; and (3) his sentence was

improperly calculated because it was based on separate adjustments to his

offense level for use and transportation of a minor, which, he contends,

constituted impermissible double counting. 

I. Factual Basis

Rule 11 of the Federal Rules of Criminal Procedure was designed to

“ensure that a guilty plea is knowing and voluntary, by laying out the steps a

trial judge must take before accepting such a plea.” United States v. Vonn, 535

U.S. 55, 58 (2002). One such step is determining that a defendant’s guilty plea

is supported by an adequate factual basis. Fed. R. Crim. P. 11(b)(3) (“Before

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

factual basis for the plea.”). The factual basis requirement “protect[s] a

defendant who may plead with an understanding of the nature of the charge, but

without realizing that his conduct does not actually fall within the definition of

the crime charged.” United States v. Spruill, 292 F.3d 207, 215 (5th Cir. 2002)

3 Because the issue was not briefed by the parties, we take no position on the propriety

of granting leave to file an out-of-time appeal as relief for a Sixth Amendment violation or

whether doing so concomitant with dismissing a defendant’s motion to vacate conforms with

Federal Rule of Appellate Procedure 4(a)(6).

4

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(quoting United States v. Johnson, 546 F.2d 1225, 1226–27 (5th Cir. 1977))

(internal quotation marks omitted). In reviewing guilty pleas for compliance

with Rule 11(b)(3), the court evaluates whether “the factual conduct to which the

defendant admits is sufficient as a matter of law to constitute a violation of the

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

(emphases omitted).

The offense of conspiracy to transport unlawful aliens, 8 U.S.C. §

1324(a)(1)(A)(ii) and (v)(I), makes it a crime for a person to conspire to transport

an alien within the United States, knowing or recklessly disregarding the fact

that the alien was unlawfully present, with intent to further the alien’s unlawful

presence. Fifth Circuit Pattern Criminal Jury Instructions § 2.03 (2012). A

person convicted of conspiracy to transport unlawful aliens is subject to a

statutory maximum sentence of 10 years of imprisonment, 8 U.S.C. §

1324(a)(1)(B)(I), unless “during and in relation to” the offense,“the person causes

serious bodily injury (as defined in section 1365 of Title 18) to, or places in

jeopardy the life of, any person,” in which case the statutory maximum increases

to 20 years of imprisonment, § 1324(a)(1)(B)(iii). This “serious bodily injury”

aggravator is an element of a aggravated offense and, as such, must be alleged

in the indictment and proved beyond a reasonable doubt. See United States v.

Williams, 449 F.3d 635, 644–45 (5th Cir. 2006) (citing Apprendi v. United States,

530 U.S. 460 (2000)). For ease of reference, we will refer to this aggravated

offense as “conspiracy to commit aggravated alien transporting.”

Alvarado-Casas argues that his conviction for conspiracy to commit

aggravated alien transporting lacks an adequate factual basis, reasoning that (1)

the offense requires proof that he personally and directly caused serious bodily

injury to, or placed in jeopardy the life of, any person, and (2) the factual basis

statement made by the government atthe rearraignmenthearing establishes that

Patricio Rebollar, the driver of the truck, and not Alvarado-Casas, the ringleader

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of the alien trafficking operation, caused the serious bodily injury to, and placed

in jeopardy the lives of, the aliens involved.

4 Alvarado-Casas points out that

unlike most federal bodily injury and death enhancements, which are triggered

if bodily injury or death “results” from the offense,

5

the enhancement provision at

issue here is triggered only if “the person,” the specific defendant whose guilt is at

issue, “causes serious bodily injury . . . to, or places in jeopardy the life of, any

person,” § 1324(a)(1)(B)(iii) (emphasis added). As evidence that this is a

distinction with a difference, Alvarado-Casas contrasts § 1324(a)(1)(B)(iii) to §

1324(a)(1)(B)(iv), which provides that“a violation . . . resulting in the death of any

person [shall] be punished by death or imprisoned for any term of years or for life.”

Itis reasonable to infer from the difference in wording of these parallel provisions

of the same statute, he contends, that Congress intended for criminal liability to

attach under § 1324(a)(1)(B)(iii) only where a defendant personally and directly

causes serious bodily injury to, or places in jeopardy the life of, another person.

The government responds thatthe offenses require only proximate or legal cause.

6

4 Alvarado-Casas initially argued that the factual basis statement did not establish that

anyone caused another person serious bodily injury during and in relation to the offense, but

later conceded this point during oral argument.

5 See 18 U.S.C. § 43(b)(3)–(4); 18 U.S.C. § 115(b)(1)(B)(iii)–(iv); 18 U.S.C. § 117(a)(2);

18 U.S.C. § 241; 18 U.S.C. § 242; 18 U.S.C. § 245(b); 18 U.S.C. § 247(d)(1)–(2); 18 U.S.C. §

248(b); 18 U.S.C. § 351(b); 18 U.S.C. § 670(c)(1); 18 U.S.C. § 844(d); 18 U.S.C. § 924(c)(5)(B);

18 U.S.C. § 1038(a)(1)(B)–(C); 18 U.S.C. § 1091(b)(1); 18 U.S.C. § 1347(a); 18 U.S.C. §

1365(a)(3); 18 U.S.C. § 1389(a); 18 U.S.C. § 1581(a); 18 U.S.C. § 1584(a); 18 U.S.C. § 1589(d);

18 U.S.C. § 1590(a); 18 U.S.C. § 1751(b), (d); 18 U.S.C. § 1752(b)(1)(B); 18 U.S.C. §

1864(b)(1)–(3); 18 U.S.C. § 1952(a)(3)(B); 18 U.S.C. § 1958(a); 18 U.S.C. § 2113(e); 18 U.S.C.

§ 2119(2)–(3); 18 U.S.C. § 2155(a); 18 U.S.C. § 2237(b)(2)–(3); 18 U.S.C. § 2281(a)(1); 18 U.S.C.

§ 2291(d); 18 U.S.C. § 2332a(a)–(b); 18 U.S.C. § 2332b(c)(1)(a); 18 U.S.C. § 2340A(a); 18 U.S.C.

§ 2441(a); 21 U.S.C. § 841(b)(1); 21 U.S.C. § 960(b)(1)–(3).

6 The government argues, in the alternative, that it was not necessary to charge and

prove that Alvarado-Casas personally caused serious bodily injury because, under Pinkerton

v. United States, 328 U.S. 640 (1946), he is liable for the reasonably foreseeable acts of his

co-conspirators. But Pinkerton liability arises only when a conspirator is charged with a

substantive offense arising from the actions of a co-conspirator, not where, as here, a

conspirator is charged solely with conspiracy. United States v. Armstrong, 619 F.3d 380, 387

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Alvarado-Casas may challenge the factual basis underlying his guilty plea

notwithstanding his unconditional appeal waiver, United States v. Baymon, 312

F.3d 725, 727 (5th Cir. 2002) (“[E]ven if there is an unconditional plea of guilty

or a waiver of appeal provision in a plea agreement, this Court has the power to

review if the factual basis for the plea fails to establish an element of the offense

which the defendant pled guilty to.”), but because he raises this issue for the first

time on appeal, our review is for plain error, United States v. London, 568 F.3d

553, 558 (5th Cir. 2009). More specifically, to prevail on this claim, AlvaradoCasas must show that (1) the district court erred in accepting his guilty plea

without a factual basis, (2) the error was plain, (3) there is a reasonable

probability that but for the error, he would not have pleaded guilty, and (4) the

error seriously affected the fairness, integrity, or public reputation of the

proceedings. Id. at 558–59 (citing United States v. Dominguez Benitez, 542 U.S.

74 (2004)).

An error is plain, in this context, if it is “clear or obvious” what the

government must prove to establish the offense, and, notwithstanding that

clarity, the district court accepts a defendant’s guilty plea without an adequate

factual basis. United States v. Garcia-Paulin, 627 F.3d 127, 132 (5th Cir. 2010);

see also United States v. Caraballo-Rodriguez, 480 F.3d 62, 70 (1st Cir. 2007)

(explaining that factual basis error is plain if the defendant’s proposed

interpretation “is compelled by the language of the statute itself, construction

(5th Cir. 2010)(confirming that“Pinkerton liability attaches only to substantive crimes”); Fifth

Circuit Pattern Jury Instructions (Criminal Cases) § 2.22 (2012). In order to trigger Pinkerton

liability in this case, the government would have needed to charge Alvarado-Casas with a

substantive count of aggravated alien transporting, under § 1324(a)(1)(A)(ii) and (a)(1)(B)(iii),

and proffer at rearraignment that Alvarado-Casas, as a conspirator, was liable for the serious

bodily injury directly caused by Rebollar’s reckless driving. See United States v. Bonetti, 277

F.3d 441, 447 (4th Cir. 2002) (affirming jury trial conviction, under Pinkerton, where the

prosecution charged the defendant with a substantive count of harboring an unlawful alien,

in violation of 8 U.S.C. § 1324(a)(1)(A)(iii), and then presented sufficient evidence that the

defendant, as a conspirator, was liable for the serious bodily injury directly caused by his wife).

7

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of the statute in light of the common law, or binding judicial construction of the

statute”) (emphasis omitted). Conversely, if a defendant’s factual basis

challenge is “novel” or “not entirely clear under existing authority,” United

States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010), or, put differently, if the district

court’s factual basis finding is “subject to reasonable dispute,” United States v.

Broussard, 669 F.3d 537, 550–51 (5th Cir. 2012), a district court’s error in

accepting the guilty plea is not plain.

We perceive no plain error in the district court’s acceptance of AlvaradoCasas’s sworn statement of guilt, as his proposed interpretation of §

1324(a)(1)(B)(iii) is not compelled by the plain language of the statute or a

binding judicial construction of it. Admittedly, by its terms, § 1324(a)(1)(B)(iii)

appears to limit liability for causing serious bodily injury to the specific

defendant whose guilt is at issue. See discussion supra pp. 5–6. But even if we

were compelled by the language of § 1324(a)(1)(B)(iii) to conclude that the

offense has a personal causation component, that would not resolve the issue

before us; we would still need to decide the degree of causation required (e.g.,

direct causation, but-for causation, substantial-factor causation, command

causation, proximate causation, etc.), an issue not resolved by the plain language

of the statute or our construction hitherto of it. We have twice affirmed

convictions for aggravated alien transporting, but in each instance, the

defendant was personally involved in the accident that resulted in serious bodily

injury so we had no cause to decide the degree-of-causation issue presented here.

See United States v. De Jesus-Ojeda, 515 F.3d 434, 444–45 (5th Cir. 2008)

(affirming jury trial conviction for aggravated alien transporting where the

defendant “personally placed [unlawful aliens] on and in an inner tube and

pulled them across the Rio Grande at night in water over their heads”); United

States v. Garcia-Flores, 207 F. App’x 397, 400–01 (5th Cir. 2006) (per curiam)

(affirming guilty plea conviction for aggravated alien transporting, on plain error

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review, where the defendant, while unlawfully transporting unlawful aliens in

his truck, got into a car accident). These decisions establish that direct, personal

causation satisfies the causation element of the statute, but they do not foreclose

the possibility that the causation element could be satisfied by a showing of

other, more remote degrees of causation, such as proximate causation or

command causation.7See Trejo, 610 F.3d at 320 (noting that “although [the cases

cited by the defendant] rely on evidence beyond the bare drug transportation

itself, none of them stand for the proposition that such evidence is required as

a matter of law”). 

Because neither the plain language of the statute nor our interpretation

of it compels the conclusion that Alvarado-Casas must have been the direct

cause of the serious bodily injury to be criminally liable under § 1324(a)(1)(B)(iii),

we conclude that the district court’s error in accepting Alvarado-Casas’s plea, if

any, was not plain. See Broussard, 669 F.3d at 550 (“[A]s we have never

addressed whether obtaining a phone number and having conversations with a

minor about meeting for illicit sexual activity constitutes a substantial step

toward persuading a minor to engage in illicit sexual activity under §

2422(b)—nor has any intervening decision clarified the issue—any error on the

7 Alvarado-Casas suggests that because we have yet to uphold a conviction for

aggravated alien smuggling against a factual basis challenge where, as here, the defendant

was not the direct or immediate causer of the serious bodily injury, the district court’s error

is clear and obvious, citing Garcia-Paulin. 627 F.3d at 132 (holding that district court’s

acceptance of a defendant’s guilty plea to bringing an unlawful alien into the United States,

under 8 U.S.C. § 1324(a)(1)(A)(I), was plain error in part because the defendant did not

accompany or arrange to have a person accompany the alien across the border, and “[w]e have

found no case where a defendant has been convicted under clause (I) of this statute for

‘bringing’ an alien into the United States except where the defendant accompanied or arranged

to have the alien accompanied (as in a smuggling operation) across the border”). Although the

absence of precedent is relevant to our plainness analysis, id., it is not dispositive. Were it,

the plainness of an error could depend more on the frequency of prosecution than the clarity

of the issue presented. We reiterate that factual basis error is not plain unless the defendant’s

proposed interpretation is compelled by the plain language of the statute or a binding judicial

construction of it.

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district court’s part in accepting Broussard’s plea on the factual basis established

by the evidence could not be plain.”); id. at 550–51 (“[A]ny error the district court

may have committed was not plain as we have never addressed whether an

alleged violation of § 14:81.3 of the Louisiana Revised Statutes constituted

‘sexual activity for which any person can be charged with a criminal offense’

under § 2422(b).”); Trejo, 610 F.3d at 319 (“Variously describing Trejo’s claim as

‘novel’ and ‘not entirely clear under the existing case authority,’ we doom the

case for plain error.”); see also Caraballo-Rodriguez, 480 F.3d at 70–76

(concluding that any error could not be plain because the defendant’s proposed

reading of the statute was not compelled by its plain language or a binding

judicial construction of it).

II. Voluntariness

In addition to determining whether a factual basis exists for the plea,

courts are required by Rule 11 to advise the defendant of “the nature of each

charge to which the defendant is pleading,” Fed. R. Crim. P. 11(b)(1)(G), the

“maximum possible penalty, including imprisonment,” Fed. R. Crim. P.

11(b)(1)(H), and “the terms of any plea-agreement provision waiving the right

to appeal or to collaterally attack the sentence,” Fed. R. Crim. P. 11(b)(1)(N).

Alvarado-Casas submits that the district court erred by (1) misadvising

him of the nature of the charge to which he was pleading guilty, in violation of

Rule 11(b)(1)(G); (2) misadvising him of the statutory maximum sentence for

that offense, in violation of Rule 11(b)(1)(H); and (3) failing to ensure that he

understood the consequences of waiving his right to appeal, in violation of Rule

11(b)(1)(N). Although his appeal waiver does not bar our review of his claims of

Rule 11 error, because Alvarado-Casas raises these claims for the first time on

appeal, review is for plain error. United States v. Oliver, 630 F.3d 397, 411 (5th

Cir. 2011). More specifically, to prevail on his claim that his guilty plea was

involuntary, Alvarado-Casas must show that (1) the district court committed

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Rule 11 error, (2) the error was plain, (3) there is a reasonable probability that

but for the error, he would not have pleaded guilty, and (4) the error seriously

affected the fairness, integrity, or public reputation of the proceedings. Id. at

411–12.

A. Nature of the Offense

At the rearraignment hearing, the district court described the elements of

conspiracy to commit aggravated alien transporting, but did not specify that to

be found guilty ofthat crime, Alvarado-Casas personally and directly must have

caused the serious bodily injury to, or placed in jeopardy the life of, another

person. As explained previously, if this was error, it was not plain error, and

thus does not entitle Alvarado-Casas to relief on plain error review. See

discussion supra pp. 8–9.

B. Statutory Maximum

The district court misadvised Alvarado-Casas that he faced a maximum

of ten years of imprisonment, when, in fact, conspiracy to commit aggravated

alien transporting carries a statutory maximum of twenty years of

imprisonment, § 1324(a)(1)(B)(iii). The error was compounded, Alvarado-Casas

argues, by defense counsel’s “promise[] that the sentence impose[d] by the court

w[ould] not be more than 10 years.” Alvarado-Casas asserts that if he had

known that he faced a statutory maximum of 20 years of imprisonment, he

would not have pleaded guilty. The government’s principal response is that the

error, if any, had no effect on Alvarado-Casas’s decision to plead guilty. As

evidence, the government points out that (1) the PSR, which Alvarado-Casas

reviewed and discussed with counsel before sentencing, correctly stated that he

faced a statutory maximum of 20 years of imprisonment, (2) Alvarado-Casas did

not object to that aspect the PSR, and (3) Alvarado-Casas did not immediately

object to the sentence imposed, even though it exceeded the 10-year maximum

he purportedly believed was the extent of his sentencing exposure.

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We agree with Alvarado-Casas that it was error for the district court to

inform him that he faced only a ten-year maximum sentence, and that the error

was clear and obvious. See United States v. Still, 102 F.3d 118, 123 (5th Cir.

1996) (“[A] plain reading of Rule 11 requires the district court to inform the

defendant of the . . . maximum possible penalty applicable to each count to which

the defendant is pleading guilty.”); see also United States v. Toruno, 229 F. App’x

296, 297 (5th Cir. 2007) (per curiam) (“The parties do not dispute that the

district court incorrectly admonished [the defendant] regarding the maximum

term of imprisonment and that the error was clear and obvious.”). 

We disagree, however, that Alvarado-Casas has carried his burden of

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

pleaded guilty. Alvarado-Casas does not point to record evidence that he was

prepared and willing to go to trial, United States v. Molina, 469 F.3d 408, 412

(5th Cir. 2006) (affirming guilty plea conviction, despite Rule 11 error, because

the defendant “d[id] not direct this court to any portion of the record supporting

the proposition that the maximum sentence for count three affected his plea

decision”), and the PSR, which he acknowledged reviewing, corrected any

misapprehensions he may have had about his sentencing exposure, UnitedStates

v. Vasquez-Bernal, 197 F.3d 169, 171 (5th Cir. 1999) (affirming guilty plea

conviction, despite Rule 11 error, in part because “the presentence report

specifically detailed the punishment range applicable to [the defendant]’s crime”).

It is true, as Alvarado-Casas points out, that “the 190-month prison

sentence actually imposed is 70 months greater than the 10-year maximum

possible prison sentence of which his counsel and the district court advised him,”

and that one consideration in our inquiry is the extent to which a defendant’s

perceived sentencing exposure diverges from his true sentencing exposure,

United States v. Guerra, 94 F.3d 989, 995 (5th Cir. 1996). But it oversimplifies

the matter to focus on this discrepancy alone, and ignore other factors that

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loomed large in the decisional calculus. In exchange for his guilty plea,

Alvarado-Casas received three acceptance-of-responsibility points, which

lowered his Guidelines range from 262–327 months to 188–235 months, a

decrease of six to seven years at both ends. Moreover, as part of the plea

agreement, the government agreed to dismiss twelve substantive counts of

aggravated alien transporting, each of which carried a sentencing exposure of

twenty years of imprisonment. Thus, even if Alvarado-Casas were prepared to

go to trial, it is not reasonably probable that he would have declined the plea

deal and exposed himself to a higher potential Guidelines range and maximum

sentence. See Caraballo-Rodriguez, 480 F.3d at 76 (holding that even if the

district court erred in accepting defendant’s guilty plea without a factual basis,

there was no reasonable probability that but for the alleged error the defendant

would not have pleaded guilty, in light of the “extremely favorable plea deal”

that was “structured to find a significantly less serious offense to which he could

plead”). Our conclusion is buttressed by Alvarado-Casas’s decision not to move

under Rule 11(d)(2) to withdraw his plea after the PSR made him aware of his

true sentencing exposure.

In summary, although Alvarado-Casas can show clear error in this regard,

it does not entitle him to relief because he has not satisfied his burden of

showing that but for the error, he would not have pleaded guilty. See Molina,

469 F.3d at 412; Vasquez-Bernal, 197F.3d at 171; Caraballo-Rodriguez, 480 F.3d

at 76.

C. Appeal Waiver

At the rearraignment hearing, the district court did not specifically focus

Alvarado-Casas on, or determine that he understood, the appeal waiver

provision. The court did, however, confirm at both rearraignment and

sentencing that Alvarado-Casas reviewed the plea agreement with counsel,

understood its terms, and signed it voluntarily. That is sufficient. United States

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v. Portillo, 18 F.3d 290, 293 (5th Cir. 1994) (“[W]hen the record of the Rule 11

hearing clearly indicates that a defendant has read and understands his plea

agreement, and that he raised no question regarding a waiver-of-appeal

provision, the defendant will be held to the bargain to which he agreed,

regardless of whether the court specifically admonished him concerning the

waiver of appeal.”). Accordingly, we perceive no error, plain or otherwise. 

III. Double counting

The Sentencing Guidelines call for a two-level adjustment to a defendant’s

offense level if the defendant “smuggled, transported, or harbored a minor who

was unaccompanied by the minor’s parent or grandparent,” U.S.S.G. §

2L1.1(b)(4) (the “transportation of a minor adjustment”), and a separate

two-level adjustment if the defendant “used or attempted to use a person less

than eighteen years of age to commit the offense or assist in avoiding detection

of, or apprehension for, the offense,” U.S.S.G. § 3B1.4 (the “use of a minor

adjustment”). The commentary to the use of a minor adjustment instructs that

the adjustment should not be applied “if the Chapter Two offense guideline

incorporates this factor.” U.S.S.G. § 3B1.4 cmt. n.2. 

Alvarado-Casas argues that because his transportation of a minor

adjustment, a Chapter Two adjustment, incorporates the involvement of a

minor, the application of both enhancements constituted impermissible double

counting. In response, the government invokes the appeal waiver provision of

Alvarado-Casas’s plea agreement, and argues that it bars his sentencing

challenge.

If invoked by the government, an appeal waiver bars a defendant from

challenging his sentence if “the waiver was knowing and voluntary” and it

“applies to the circumstances at hand, based on the plain language of the

agreement.” United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). The

appeal waiver in Alvarado-Casas’s plea agreement provides, in pertinent part:

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 Case: 12-40295 Document: 00512240551 Page: 14 Date Filed: 05/14/2013
No. 12-40295

“The defendant waives the right to appeal the sentence imposed or the manner

in which it was determined. The defendant may appeal only (a) a sentence

imposed above the statutory maximum; or (b) an upward departure from the

Sentencing Guidelines which had not been requested by the United States.” The

plain language of the provision covers this challenge to his sentence, which was

below the statutory maximum and not the product of an upward departure. 

Moreover, “[b]ecause [Alvarado-Casas] indicated that he read and understood

the agreement, which includes an explicit, unambiguous waiver of appeal, the

waiver was both knowing and voluntary.” Id. Accordingly, the appeal waiver

bars Alvarado-Casas’s sentencing challenge.

CONCLUSION

For the foregoing reasons, we conclude that the district court’s acceptance

of Alvarado-Casas’s guilty plea, if error, was not plain error; the district court’s

admonishment regarding Alvarado-Casas’s sentencing exposure, though clear

error, did not materially affect his decision to plead guilty; and the appeal waiver

bars Alvarado-Casas’s challenge to his sentence. AFFIRMED.

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 Case: 12-40295 Document: 00512240551 Page: 15 Date Filed: 05/14/2013