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

No. 12-40295

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. SERVANDO ALVARADO-CASAS, also known as El Chino, Defendant - Appellant

A ppeal from the United States District Court for the Southern District of Texas

Before DAVIS, GRAVES, and HIGGINSON, Circuit Judges. 1 HIGGINSON, Circuit Judge: F o r t h e f i r s t t i m e o n a p p e a l , D e f e n d a n t

- Ap p e l l a n t S e rv a n d o A l v a r a d o - C a s a s challenges his federal guilty plea conviction of conspiracy t o commit aggravated alien transporting, arguing principally that his plea lacks an adequate factual basis, and that the district c ourt m isadvised h im as to his sentencing exposure, rendering his plea i n v oluntary. Concluding that the district court’s error in accepting his guilty plea, i f any, was not plain, and t h a t i t s admonishment regarding his s entencing exposure, t hough clear error, did not materially affect his decision to plead guilty, we AFFIRM. 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 May14, 2013 Ly l e W . Cay ce Clerk

1 G raves , Circuit Jud ge, concurs in the jud gm ent only. Case: 12-40295 Document: 00512240551 Page: 1 Date Filed: 05/14/2013No. 12-40295 FACTS AND PROCEEDINGS Servando Alvarado-Casas was charged by indictment w ith twelve counts of transporting unlawful aliens causing serious bodily i nj u ry to, o r placing in jeopar d y t h e l i f

e of, any p erson, and one count of conspiring to c ommit that offense. Pursuant to a signed plea agreement, Alvarado-Casas a greed to plead guilty to the conspiracy count and to waive his right to appeal h is conviction and sentence in exchange for the government’s pro m i s e to dismiss the remaining counts i n the indictment and t o make certain sentencing recommendations. The plea waiver reads as follows: Defendant waives his/her right to a p p e a l both the conviction and t h e sentence imposed. Defendant is aware that 18 U.S.C. § 3 742 a ffords
a defendant the right t o appeal th e s entence imposed. The defendant waives the right to appeal the s e n t e n c e i mposed o r t h e manner in w hich it was determined. The defendant m ay appeal only (a) a sentence imposed above the statutory maxi m u m ; or (b) an upward departure from the Sentencing Guidelines which h a d n ot been requested by the United States, as set forth in 18 U

. S.C. § 3742(b). Additionally, the defendant i s aware that 28 U.S.C. § 2 255, affords the right to contest or “collateral l y attack” a conviction or s e ntence after the conviction o r s entence has become final

. T h e defendant waives the right to contest h is/her c onviction or s entence by means of any post-conviction proceeding. At rearraignment, the district court a sked Alvarado-Casas if he had read the plea agreement, had understood its terms, and had signed i t v o l u ntarily. Al v a r ado-Casas responded that he had. The distr i c t c o u r t a d m o n i s h e d Al v a r a d o Casas that he faced up to t en years of imprisonment, and would not b e allowed to withdraw his guilty plea if th e s e n t e nce imposed was more s evere than he
expe c t ed. Alvarado-Casas responded that he understood. The district court explained the elements of the conspiracy offense and asked Alvarado-Casas if he understood t hem. Alvarado-Casas responded that he did. The government then gave the following factual basis statement:

2 Case: 12-40295 Document: 00512240551 Page: 2 Date Filed: 05/14/2013No. 12-40295

[O]n November 24th of 2009, border patrol agents advised ICE of a motor vehicle accident in w hich 17 illegal aliens and the driver [of the] vehicle had gone off an embankment, approximately a 40-foot drop. B order patrol a gents and ICE officials responded to the area. They were able to determine that the 17 i ndividuals that were in t h e bed o f the p ickup truck were illegally present in t he United S tates. The maj ority were from Guatemala with, I believe, three Mexican citizens. One driver o f the v e hicle was i dentifie d a s Patricio Reb o l l a r
. He, as well as the aliens were all transported to s u r rounding area h ospitals.

. . . ICE agents spoke to Patri c i o Rebollar, and h e a dvised that he was , i n f a ct, the driver of t h e pickup trunk a nd that he was transporting ill e g a l a liens. H e indicated that he was transporting the aliens for a n i ndividual that he i dentified as Chino. ICE agents w ere a ble t o i dentify t h e individual that he identified as Chino as Servando Alvarado-Casas. Af t e r c o n f i r m i n g t h a t t h e g o v e r n m e n t ’ s s t a t e m e n t w a s a c c u r a t e , Alvarado-Casas pleaded guilty to the conspiracy offense, and the court accepted his plea. At sentencing, the district court a dopted the presen t e n c e report (“PSR”) and c a l c u l ated Alvarado-Casas’s Guidelines range to be 188 to 235 months of imprisonment based on a total offense level of 34 and a criminal h istory category of III. 2 Alvarado-Casas made a number of objections, incl u d i n g that separate adjustments to his offense level for use and transportation o f a minor constituted i mpermissible double c ounting. The d istrict court overruled the “double counting” objection, and s entenced Alvarado-Casas to 19 0 months of imprisonment. Alvarado-Casas did not file a timely notice of appeal. In June 2008, Al v a r a d o - 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 o f appeal. After holding

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

2 The PSR cons ervatively es tim ates that the s op his ticated alien s m uggling op eration, led by Alvarad o- Cas as with as s is tance f rom a Mexican cartel, s m uggled over 2, 500 unlaw ful aliens to the U nited States over a f ive- year p eriod , and received betw een $1, 000 and $10, 000 p er alien. 3 Case: 12-40295 Document: 00512240551 Page: 3 Date Filed: 05/14/2013No. 12-40295

prejudice, granted Alvarado-Casas leave t o file an “out-of-tim e ” direct appeal, and appointed counsel for that purpose. 3 This appeal followed. DISCUSSION On appeal, Alvarado-Casas ar g u e s t hat: (1) his conviction lacks an adequate factual b asi s b e c a use the stipulated f acts did n ot establish that he
pe r s o nally caused serious injury to, or placed in jeopardy the life of, another
person during and in relation to the offense; (2) his guilty p lea was involuntary because t he district court misadvised h i m of t he nature of t he conspiracy offense and the statutory maximum it carried and failed to ensure that he understood t h e c o nsequences of waiving his right to a ppeal; and (3) his sentence was improperly calculated because it was b ased on sep a r a t e a djustments to his offense l evel for use and transportation of a minor, which, he contend s, constituted impermissible double counting. I. Factual Basis Rule 11 of the Federal Rules of Criminal Proc e d u re was designed to “ensure t hat a g u ilty plea is knowing and v oluntary, by laying out the steps a trial judge must t ake before accepting s uch a p lea.” United States v. Vonn , 535 U.S. 55, 5 8 (2002). One such step is determining that a defendant’s guilty plea is supported b y an adequate factual b a s is. Fed. R. Crim. P. 11(b)(3) (“Before entering judgment on a guilty plea, the c ourt must d etermine tha t t h e r e is a factual basis for the p l e a.”). The factual basis requirement “protect[s] a defendant who m a y plead with an understanding of the nature of the charge, but without realizing t hat h is conduct does not actually fall within the definition of the crime ch a r ged.” United States v. Spruill , 292 F.3d 2 07, 215 (5th Cir. 2002)

3 Becaus e the is s ue w as not brief ed by the parties , w e tak e no p os ition on the p rop riety of g ranting leave to f

ile an out- of

- tim e ap p e a l a s r e l i e f f or a Sixth Am end m ent violation or w hether d oing s o concom itant w ith di sm i ssi ng a d ef end ant’s m otion to vacate conf orm s w ith Fed eral Rule of Ap p ellate P roced ure 4( a) ( 6)

. 4 Case: 12-40295 Document: 00512240551 Page: 4 Date Filed: 05/14/2013No. 12-40295

(quoting United States v. Johnson , 546 F.2d 1225, 1226–27 (5th Cir. 1 9 7 7 ) ) (internal quotation m arks o mitted). In reviewing g uilty p l e a s f o r compliance with Rule 11(b)(3), the c ourt 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), m akes it a crime for a person to conspire to t ransport

an alien within the United States, knowing or r e cklessly d i sregarding the fact that t he alien was unlawfully present, with intent to f urther the alien’s unlawful
presence. F ifth C ircuit Pattern Criminal Jury Instructions § 2.03 (2012)

. A
person c o n v i c ted of conspiracy to transport unlawful aliens i s s ubject to a statutory maximum sen t e n c e o f 10 years of i mprisonment, 8 U.S.C. § 1 3 2 4(a)(1)(B)(I), unless “during and in relation to” the o ffense , “ t h e p e r s o n c a u s e s serious b o dily injury (as defined in section 1365 o f Title 18) to, o r places in jeopardy the life of, any person,” i n which case the statutory maximum increases to 20 years of imprisonme n t , § 1324(a)(1)(B)(iii). This “ serious bodily injury” aggravator is an element of a aggravated o ffense a nd, as such, m ust be alleged in the indictment and p ro v ed beyond a r e asonable d oubt. See United States v. Williams , 449 F.3d 635, 644–45 (5th Cir. 2006) (citing Apprendi v. U nited States , 530 U.S. 460 (2000)). For ease of reference, we will r e f e r to this a g gr a v a t e d

o f f e n s e a s “ c o n s p i r a c y t o c o m m i t a g gr a v a t e d a l i e n t r a n s p o r t i n g
. ” Al v a r a d o - C a s a s ar g u e s t h a t h i s c o n v i c t i o n f o r c o n s p i r a c y t o c o m m i t

a g g r a v a t e d a l i e n t r a n s p o r t i n g l a c k s a n a d e q u a t e f a c t u a l b a s i s , r e a s o n i n g t h a t ( 1 ) t h e o f f e n s e r e q u i r e s p r o o f t h a t h e p e r s o n a l l y a n d d i r e c tly caused s e r i o u s b o d i l y i n j u r y t o , o r p l a c e d i n j e opardy t h e l i f e o f , a n y p e r s o n , a n d ( 2 ) t h e f a c t u a l b a s i s

s t a t e m e n t m a d e b y t h e g o v e r n m e n t a t t h e r e a r r a i g n m e n t h e a r i n g e s t a b l i s h e s t h a t P a t r i c i o R e b o l l a r , t h e d r i v e r o f t h e t r u c k , a n d n o t Al v a r a d o - C a s a s , t h e r i n g l e a d e r
5 Case: 12-40295 Document: 00512240551 Page: 5 Date Filed: 05/14/2013No. 12-40295

o f t h e a l i e n t r a f

f i c k i n g o p e r a t i o n , c a u s e d t h e s e r i o u s b o d i l y i n j u r y t o , a n d p l a c e d i n j e o p a r d y t h e l ives of, t h e a l i e n s i n v o l v e d

. 4 Al v a r a d o - C a s a s p o i n t s o u t t h a t

u n l i k e m o s t f

e d e r a l b o d i l y i n

j u r y a n d d e a t h e n h a n c e m e n t s , w h i c h a r e t r i g g e r e d i f b o d i l y i n

j u r y o r d e a t h “ r e s u l t s ” f r o m t h e o f

f e n s e , 5 t h e e n h a n c e m e n t p r o v i s i o n a t i s s u e h e r e i s t r i g g e r e d o n l y i f “ t h e p e r s o n , ” t h e s p e c i f i c d e f e n d a n t w h o s e g u i l t i s a t issue, “ c a u s e s s e r i o u s b o d i l y i n j u r y . . . t o , o r p l a c e s i n j e o p a r d y t h e l i f e o f , a n y p e r s o n , ” § 1 3 2 4(a)(1 ) ( B ) ( i i i ) ( e m p h a s i s a d d e d)

. A s e v i d e n c e t h a t t h i s i s a d i s t i n c t i on w i t h a d i f

f e r e n c e , Al v a r a d o - C a s a s c o n t r a s t s § 1 3 2 4 ( a ) ( 1 ) ( B ) ( i i i ) t o § 1 3 2 4 ( a ) ( 1 ) ( B ) ( i v) , w h i c h p r o v i d e s t h a t “ a v i o l a t i o n
. . . r e s u l t i n g i n t h e d e a t h o f a n y p e r s o n [ s h a l l ] b e p u n i s h e d b y d e a t h o r i m p r i s o n e d f o r a n y t e r m o f y e a r s o r f o r l i f e
. ” I t i s r e a s o n a b l e t o i n f

e r f r o m t h e d i f

f e r e n c e i n w o r d i n g o f t h e s e p a r a l l e l p r o v i s i o n s

o f t h e s a m e s t a t u t e , h e c o n t e n d s , t h a t C o n g r e s s i n t e n d e d f o r c r i m i n a l l i a b i l i t y t o

a t t a c h u n d e r § 1 3 2 4 ( a ) ( 1 ) ( B ) ( i i i ) o n l y w h e r e a d e f e n d a n t p e r s o n a l l ya n dd i r e c t l y

c a u s e s s e r i o u s b o d i l y i n j u r y to, o r p l a c e s i n j e o p a r d y t h e l i f e o f , a n o t h e r p e r s o n
. T h e g o v e r n m e n t r e s p o n d s t h a t t h e o f f e n s e s r e q u i r e o n l y p r o x i m a t e o r l e g a l c a u s e
. 6

4 Alvarad o- Cas as initially argued that the f actual b a si s st a t e ment d id not es tablis h that anyone caus ed another p ers on s erious bod ily injury d uring and in relation to the of f ens e, but later conced ed this p oint d uring oral argum ent.

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) ; 1 8 U

. S. C. § 241; 18 U

. S. C. § 242; 18 U

. S. C. § 245( b) ; 18 U

. S. C. § 247( d )( 1) –( 2) ; 1 8 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. § 10 9 1 ( 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 ) ; 1 8 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 governm ent argues , in the alternative, that it w as not neces s ary to charge and p rove that Alvarad o- Cas as p ers onally caus ed serious bod ily injury becaus e, und er Pi nkerton
v
. U ni ted Sta t es , 328 U

. S. 640 ( 1946) , he is liable for the reas onably f ore s e e a b le acts of his
c o - c o n s p irators

. But Pi nkerton liability aris es only w hen a cons p irator is charged w ith a s ubs tantive of

f ens e aris ing f

rom the actions of a co- cons p irator , not w here, as here, a cons p irator is charged solely w ith cons p iracy. U ni ted Sta tes v
. A rm strong , 619 F

. 3d 380, 387 6 Case: 12-40295 Document: 00512240551 Page: 6 Date Filed: 05/14/2013No. 12-40295

Alvarado-Casas may challenge t he factual basis underlying his g u ilty plea notwithstanding his unconditional appeal waiver, United States v. Baymon , 312 F.3d 725, 7 27 (5th Cir. 2002) (“[E]ven if there is an u nconditional plea of guilty

or a waiver of appeal p rovision in a plea agreement, this Court has the power to review if the factual basis for the p lea fails t o establish an element of the offense which the defendant pled guilty to.”), but because he raises t his issue for the first time on appeal, o ur review i s for plain error, U nited States v. London , 568 F.3d 553, 558 ( 5 t h Cir. 2009). More specifically, to prevail on t his claim, AlvaradoCasas must show that (1) the district court erred in a ccepting his gu ilty plea without a factual b asis, (2) the error was plain, (3) there i s a reaso nable probability that but for the error, he w ould n ot have pleaded guilty, and (4) the

error seriously affected the fairness, integrity, or public r eputatio n o f the proceedings. Id. at 558–59 (citing United States v. Dominguez Benitez , 5 42 U.S. 74 (2004)). An error is plain, i n t h i s c o n text, if it is “clear or obvious” what the government must prove to e stablish the offense, and, notwithstanding that clarity, the district c ourt accepts a defendant’s guilty plea without an a dequate factual basis. U

nited States v. Garcia-Paulin , 6 27 F.3d 127, 132 (5th Cir. 2010);

see also U

n ited States v. Caraballo-Rodriguez , 480 F.3d 62 , 7 0 (1st Cir. 2007) (explaining that f

actual basis error is p lain i f the defendant’s proposed int e r p r e t a tion “ is compelled by the language o f t h e statute itself, construction

( 5th C ir. 2010) ( conf

irm in g t h a t “Pi n kerton liability attaches only to s ubs tantive crim es ”) ; Fif th Circuit Pattern Jury Ins tructions ( Crim inal Cas es ) § 2. 22 ( 2012)

. In ord er to trigger Pi nkerton liability in this cas e, the g o v e r n m e n t w ould have need ed to charge Alvarad o- Cas as w ith a s ubs tantive count of aggravated alien trans p orting, und er § 1324( a) (1) (A) ( ii) and ( a) ( 1) ( B) ( iii) , and p rof f er at rearraignm ent that Alvarad o- Cas as , as a cons p irator, w as liable for the s erious bod ily injury directly caus ed by Rebollar’s reck les s d riving. See Uni ted Sta tes v
. Bonetti , 277 F. 3d 441, 447 ( 4th Cir. 2002) ( af f irm ing jury trial conviction, und er P i nkerton , w here the p ros ecution charged the def end ant w ith a s ubs tantive count of harboring an unlaw f ul alien, in violation of 8 U

. S. C. § 1324( a) ( 1) (A) ( iii) , and then p res ented s uf ficient evid ence that the d ef end ant, as a cons pirator, w as liable f or the s erious bod ily injury d irectly caus ed by his w if e)

. 7 Case: 12-40295 Document: 00512240551 Page: 7 Date Filed: 05/14/2013No. 12-40295

of the s tatute in light of the common l aw, or b inding judicial c onstruction of the statute”) ( emphasis omitted). Conversely, if a defendant’s f a c t u a l basis challenge is “ novel” o r “ not entirely clear under existing authority,” United S t a t e s v
. T

r e j o , 6 1 0 F

. 3 d 3 0 8 , 3 1 9 ( 5 t h C i r
. 2 0 1 0 ) , o r , p u t d i f f e r e n t l y , i f t h e d i s t r i c t

c o u r t ’ s f a c t u a l b a s i s f

i n d i n g i s “ s u bj e c t t o r e a s o n a b le dispute, ” U n i t e d S t a t e s v
. B r o u s s a r d , 6 6 9 F

. 3 d 537 , 5 5 0

– 5 1 ( 5 t h C i r
. 2 0 1 2 ) , a d i s t r i c t c o u r t ’ s e r r o r i n

a c c e p t i n g t h e g u i l t y p l e a i s n o t p l a i n
. We perceive no plain error in the district court’s acceptance of AlvaradoCasas’s sworn statement o f g uilt, as his proposed i n t e rpretation of § 1324(a)(1)(B)(iii) is not c ompelled by the plain language of t he statu t e or a binding j udicial construction of it. Admittedly, by its terms, § 1324(a)(1)(B)(iii)
appears to limit l iability for causing s erious bodily injury to the specific defendant whose guilt is at issue. See discussion supra pp. 5–6. But e ven if we

were compelled by the la n g u age of § 1324(a)(1)(B)(iii) to conclude that the offense has a p e r s o n a l causation component, that would not resolve the issue b e f o r e u s; we would still n eed to decide the degree of causation required ( e. g
. , direct causation, but-for causation, substantial-factor causation , c o mmand causation, proximate causation, e t c
. ) , a n i s s u e n ot resolved by the plain language of the s t atute or our construction hitherto of it. We have twice affirmed convictions for aggravated alien transporti n g , but in each instance, the defendant was personally involved in the a ccident that resulted i n serious bodily injury so we h a d no cause to decide the degree-of-causation issue presented here. See U n ited States v. De Jesus-Ojeda , 515 F.3d 4 3 4 , 4 4 4 –45 (5th Cir. 2008) (affirming j u r y trial conviction for a ggravated alien transporting where the defendant “personally placed [unlawful aliens] on and in an i n n er tube and pulled t hem across the Rio Grande at night in water o ver their heads”); United States v
. Garcia-Flores , 2 07 F. App’x 397, 400–01 (5 t h C i r
. 2006) (per curiam) (affirm i n g g u i l t y p l e a c o n v i c t i o n for aggravated alien transporting, on plain error
8 Case: 12-40295 Document: 00512240551 Page: 8 Date Filed: 05/14/2013No. 12-40295

review, where the defendant, while unlawfully transporting unlawful aliens in his truck, got i nto a car accident). These decisions establish that direct, personal causation satisfies the c ausation element of the statute, but t h ey d o not foreclose the possibility that the causation element could b e satisf i ed by a showing of other, more r emote degrees of causation, s u c h as p roximate causation or command causation. 7 See Trejo , 610 F .3d at 3 20 (noting t h at “although [the cases cited by the defendant] rely on evidence b eyond the bare drug transportation itself, none of them stand for the proposition t hat such evidence is required as a matter of law”). Because neither the plain language of the statute nor our interpretation of it c o m p e l s the conclusion that Alvarado-Casas m ust have been the direct

c a u s e o f t h e s e r i o u s b o d i l y i n j u r y t o b e c r i m i n a l l y l i a b l e u n d e r § 1 3 2 4 ( a ) ( 1 ) ( B ) ( i i i ) ,
we conclude that the district court’s error in accepting Alvarado-Casas’s plea, if
any, was n o t p l ain. See Broussard , 669 F.3d at 550 ( “[A]s we have never addressed whether obtaining a phone number and having c o nversations with a minor about meeting for illicit sexual activity c onstitutes a substantial step toward p ersuadi n g a m i nor to engage in illicit sexual activity u nder § 2422(b)—nor has any intervening decision clarified t he issue—any error on the

7 Alvarad o- Cas as s ugges ts that becaus e w e have yet to u p h o l d a conviction f or aggravated alien s m uggling agains t a f a c t u al bas is challenge where, as here, the d ef end ant
w as not the d irect or im m ed iate caus er of the serious bod ily injury, the dis trict court’s error is clear and obvious , citing G a rci a - Pa ul in

. 627 F .3d at 132 ( hold ing that d is trict c ourt’s accep tance of a d ef

end ant’s guilty p lea to bringing an unlaw f ul alien into the U nited States , und er 8 U

. S. C. § 1324( a) ( 1) (A) ( I) , w as p lain error in p art becaus e the d e f e n dant d id not accom p any or arrange to have a p ers on accom p any the alien acros s the bord er, and “[ w ] e have f ound n o c a s e w here a def end ant has been convicted und er claus e (I) of this statute f or ‘bringing’ an alien into the U nited States excep t w here the def end ant accom p anied or arr a n ged to have the alien accom p anied ( as in a s m uggling op eration) acros s the bord er”)

. Although the abs ence of p reced ent is relevant to our p lainnes s analys is , i d. , it is not d is p os itive. Were it, the p lainnes s of an error could d ep end m ore on the frequency of p ros ecution than the clarity of the is s ue p res ented

. We reiterate that f actual bas is error is not plain unles s the d ef end ant’s p rop os ed interp retation is com p elled by the p lain language of the s tatute or a bind ing jud icial
cons truction of it. 9 Case: 12-40295 Document: 00512240551 Page: 9 Date Filed: 05/14/2013No. 12-40295

d i strict court’s part in accepting Broussard’s plea on the factual b a s i s e s t a b l i s h e d by the e vidence could not be plain.”); id. at 550–51 (“[A]ny error t he district court
may have committed was not plain a s w e h a ve never addressed whether an alleged v iolation of § 14:81.3 of the Louisiana R evised Statutes constituted ‘sexual activity for w h i c h a n y person can be charged with a criminal offense’ under § 2422(b).”); Trejo , 610 F.3d at 319 (“Variously d escribing Trejo’s claim as ‘novel’ a nd ‘not entirely clear under the e x i s t i n g case authority,’ w e doom the

case for plain error
. ” ) ; see also Caraballo-Rodriguez , 480 F .3d at 70–76 (concluding that any e rror c ould not b e plain b ecause the d efendant’s proposed

r e a d i n g o f t he statute was not compelled by its plain language or a bind i n g judicial construction of it). II. Voluntariness In addition t o d etermining whether a factual ba s is exists for t he plea, courts are required by Rule 1 1 to advise t he d efendant o f “ the nature of e a c h charge t o which the d efendant is pl e a d i n g , ” Fed. R. Crim. P

. 11(b)(1)(G), the “maximum possible penalty, including i mprisonment,” F ed. R. C rim. P. 11(b)(1)(H), a nd “ the terms of any pl e a - a g reement 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 c ourt 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) mis a d v i s ing him of the statutory maximum sentence for that offense, in violation of Rule 11(b)(1)(H); a nd (3) failing to ensure that he understood t he consequences of waiving his r i ght to appeal, i n violation of Rule 11(b)(1)(N). Although his appeal waiver does not bar our r e view of his claims of Rule 11 error, because Alvarado-Casas raises these c l aims f or the first time on appeal, review is for plain error. United States v. O l iver , 630 F.3d 397, 4 11 (5th Cir. 2011). More specifically, to prevail o n his claim that his guilty plea was involuntary, Alvarado-Casas mus t s h ow that (1) t he district c ourt committed

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Rule 11 error, (2) t he error was plain, (3) there is a reasonable probability that b u t for the error, h e would not have pleaded guilty, a nd (4) the error seriousl y affected the f

a i r n e s s, integrity, or public r eputation of the proceedings. Id. at 411–12. A. Nature of the Offense At the rearraignment hearing, the d istrict court described t he e lements of conspiracy to commit aggravated alien t r ansporting, but did n ot specify that to be found guilty o f that crime, A lvarado-Casas personally a nd directly must have caused the serious b odily injur y t o , o r p laced in j eopardy the l ife of, another
person. As explained previou s l y , if t his was e rror, it was not plain error, and thus does not entitle Alvarado-Casas to relief on p l a i n error review. See discussion supra pp. 8–9. B. Statutory Maximum T h e d istrict court m isadvised Alvarado-Casas that he faced a maxim u m of ten year s of i mprisonment, when, in fact, conspiracy t o commit aggravated alien tr ansporting carries a statutory m aximum of twenty years of imprisonment, § 1324(a)(1)(B)(iii). The error was compounded, Alvarado-Casas
argues, by defense counsel’s “ promise[] t hat the sentence impose[d] by the court w[o u ld] not be more than 10 years.” Alvarado-Casas asserts t hat if he had known that he faced a statutory maxim u m o f 2 0 years of i m prisonment, he would not have pleaded g uilty. The government’s principal response is that the
error, if an y , h a d n o effect on A lvarado-Casas’s decision to plead guilty. As evidence, the government points out t h a t (1) t he PSR, w hich Alvarado-Casas reviewed and discussed w ith counsel b efore 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 t hat it was e r r o r f o r the district court to inform him t hat he faced only a ten-year maximum sentence, and t hat the error

w a s c l e a r and obvious. See United States v. Still , 102 F.3d 118, 123 (5th Ci r
. 1996) (“[A] p lain reading of Rule 11 r e q u i r e s the district c o urt to inform the defendant of the

. . . maximum possible penalty applicable to each count to which the d efendant is pleading guilty.”); see also U n ited S tates v. Toruno , 229 F. App’x 296, 2 97 ( 5th C i r. 2007) (per c uriam) (“The parties d o n ot dispute that the district court incorrectly admonished [ the defendant] r ega r d i ng the maximum term of imprisonment and that the error was clear and obvious.”). We disagree, however , t hat A lvarado-Casas has carried his burden of establishing a reasonable probability that but for the error, he would not have pleaded guilty. A lvarado-Casas does not p oint to record evidence tha t he was prepared and willi n g to go to trial, United States v. Molina , 469 F.3d 408, 412 (5th Cir. 2006) (affirming guilty p lea conviction, d e spite Rule 11 error, because the defendant “d[id] not d irect this court to any portion of the record supporting the proposition that the maximum s e n t e n ce for count t hree affected his plea decision”), and the PSR, w h i c h he acknowledged reviewing, corrected any

m i s a p p r e h e n s i o n s h e m ay have had about his s e ntencing e x p o s u r e , U n i t e d S t a t e s

v
. V a s q u e z - B e r n a l , 1 9 7 F

. 3 d 1 6 9 , 1 7 1 ( 5 t h C i r
. 1 9 9 9 ) ( a f f i r m i n g g u i l t y p l e a

c o n v i c t i o n , d e s p i t e R u l e 1 1 e r r o r , i n p a r t b e c a u s e “the p r e s e n t e n c e r e p o r t

s p e c i f i c a l l y d e t a i l e d t h e p u n i s h m e n t r a n g e a p p l i c a b l e t o [ t h e d e f e n d a n t ] ’ s c r i m e ” )

. It is true, as Alvarado-Casas points o ut, that “the 1 9 0

- month prison sentence actually imposed is 70 m onths greater t han t he 10-year maximum possible prison sentence o f which his counsel and the district court advised him,” and that one c onsideration in our inquiry is the e x tent 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). B ut it oversimplifies the matter to f

ocus on t h i s discrepancy a lone, and ignore other factors that

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l o omed l arge in t he decisional calculus. In e xchange for his guilty p l e a , Alvarad o -Casas received three acceptance-of-responsibility points, which lowered his Guidelines range from 262–327 m onths to 188–2 3 5 m o n t hs, a decrease of six to seven years a t b o t h e n d s
. Moreover, as part of the plea agreement, t h e g o v ernment agreed to dismiss t welve s ubstantive counts of aggravated alien transporting, each of which carried a sente n c i n g e xposure of twenty y ears of imprisonment. Thus, even if A lvarado-Casas were prepared to go t o trial, it is not reasonably probable that h e would have declined th e plea deal and exposed himself to a higher potential Guidelines r ange a nd maximum sentence. See Caraballo-Rodriguez , 480 F.3d at 76 (holding that even i f the district court e rred i n accepting defendant’s guilty plea without a factual basis, there was no reasonable probability that b ut for the alleged error t h e defendant would not have pleaded guilty, in light of the “extremely fav o r a b l e plea deal” that was “structured to find a significantly less serious offense to which he could plead”). Our conclusion is buttressed b y 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 Al v a rado-Casas can show clear error in t his regard, it does not entitle hi m t o r e l i ef because h e has not satisfied his b urden of

s howing that but for t h e error, he would not have pleaded g uilty. See Molina , 469 F.3d at 412; V

a s q u e z - B e r n a l , 1 9 7 F

. 3 d a t 1 7 1 ; C araballo-Rodriguez , 480 F.3d at 76. C. Appeal Waiver At the rearraignment hearing, the district court did not s pecifically focus Alvarado-Casas on, or determine that he u n d e r stood, the appeal waiver provision. The c ourt did, h o w e v er, 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. U nited States

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v. Portillo , 18 F.3d 290, 293 (5th Cir. 1994) ( “ [ W ] hen the record of the Rule 11 h e a r i n g clearly indicates that a defendant has read and understands his plea agreement, and that he raised no q uestion regarding a waiver-of-appeal provision, the defendant will be hel d t o t h e b argain to which he agreed, regardless of whether the cou r t s p ecifically admonished him c oncerning the waiver of appeal.”). Accordingly, we perceive no error, plain or otherwise. III. Double counting The Sentencing Guidelines c all for a two-level adjustment to a defendant’s offense level if the defendant “smuggled, t ransported, or h arbored a minor who

was unaccompanied by the minor’s parent or grandparent,” U.S.S.G. § 2L1.1(b)(4) (the “tran s p o r t ation of a minor adjustment”), and a separate two-level a djustment if the defendant “used or a ttempted to use a person less than eighteen years o f a ge to commit the offense or assist in avoiding detection of, or apprehension f

or, the offense,” U.S. S

. G

. § 3 B 1 .4 (the “use of a minor adjustment”). The commentary to the use of a minor adjustment instructs that the adjustme n t should not be applied “if t he Chapter Two offense g uideline incorporates this factor.” U.S.S.G. § 3B1.4 cmt. n.2. Alvarado-Casas argues that because his transportation o f a minor adjustment, a Chapter Two adjustment, incorporates th e i nvolvement 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 a rgues that it bars his sente n c ing challenge. If invoked by the governme n t , an a ppeal waiver bars a defendant from challenging his sentence if “the waiver was knowing and v o l u n t a r y ” and it “applies to the c ircumstances at h a n d, based on the plain language of the

a g r e e ment.” United S tates v. Bond , 414 F.3d 542, 5 44 (5th Cir. 2005). T h e appeal waiver in Alvarado-Casas’s plea agreement provides, in pertinent part:

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“The defendant w aives the r ight to appeal the sentence i mposed or the manner in which i t was determined. The defendant may appeal only (a) a s entence imposed above the s tatutory maximum; or (b) an u p ward dep arture from the Sentencing Guidelines which had not been requested by the U n ited States.” The plain language of the provision covers this challenge to his sentence, which was below the statutory m a x i mum and not the product of an upward departure. Moreover, “[ b ] e c a u se [Alvarado-Casas] indicated that he read and understood the agreement, which i n cludes an explicit, unambiguous w aiver of appeal, the waiver w as both knowing a n d v o l u n t ary.” Id. Accordingly, the appeal waiver bars Alvarado-Casas’s sentencing challenge. CONCLUSION For t he foregoing reasons, we conclude that the district c ourt’s acceptance of Alvarado-Casas’s guilty plea, if error, was not p lain error; the district court’s admonishment regarding Alvarado-Casas’s sentenc i n g exposure, though clear
error, did not m aterially affect his decision to plead guilty; and the appeal waiver bars Alvarado-Casas’s challenge to his sentence. AFFIRMED.

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