United States Court of Appeals

for the Fifth Circuit

No. 20-50054

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Joshua Cato,

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:19-CR-139-1

Before Owen, Chief Judge, and Dennis and Ho, Circuit Judges.

Per Curiam:*

Joshua Cato appeals his guilty plea conviction and the sentence of 192 

months of imprisonment imposed for conspiracy to possess with intent to 

distribute and distribute a controlled substance, namely 50 grams or more of 

actual methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) & 

* Pursuantto 5TH CIRCUIT RULE 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should not be published and is not precedent except under the limited circumstances set 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 CIRCUIT RULE 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 9, 2020

Lyle W. Cayce

Clerk

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846. Cato argues that (1) the district court lacked subject matter jurisdiction 

because the indictment was deficient in that it did not charge an offense; (2) 

the district court erred in concluding that his guilty plea was knowing and 

voluntary because the magistrate judge (MJ) did not define the term 

“conspiracy” and the factual basis was insufficient; (3) the Government 

breached the terms of the plea agreement by arguing for an upward 

departure; and (4) the district court erred in sentencing him based on a 

quantity of actual methamphetamine because the Government failed to prove 

that the substance at issue was actual methamphetamine. In response, the 

Government asserts that Cato’s claims are without merit and further asserts 

that the waiver of appeal provision in Cato’s written plea agreement bars 

review of Cato’s sentencing claim. 

Cato did not challenge the sufficiency of the indictment before the 

district court; therefore, we review for plain error only. United States v. 

Fairley, 880 F.3d 198, 206 (5th Cir. 2018). A district court’s jurisdiction is 

based upon the charging instrument stating an offense “cognizable under the 

authority of the United States.” United States v. Cotton, 535 U.S. 625, 630-

31 (2002) (internal quotation marks and citation omitted). Defects in an 

indictment “do not deprive a court of its power to adjudicate a case”; thus, 

a defective indictment is not a jurisdictional defect. See id. at 630. Because, 

as discussed infra, Cato entered a knowing and voluntary guilty plea, he has 

waived review of all nonjurisdictional defects in the proceedings. See United 

States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000).

“A district court’s acceptance of a guilty plea is a factual finding which 

is generally reviewed under the clear error standard.” United States v. 

Garcia-Paulin, 627 F.3d 127, 131 (5th Cir. 2010). However, because Cato 

failed to challenge his guilty plea on the basis that it lacked an adequate factual 

basis, review is for plain error only. United Sates v. Nepal, 894 F.3d 204, 208 

(5th Cir. 2018). Under plain error review, this Court considers the entire 

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record in assessing whether there is an adequate factual basis for a guilty plea. 

United States v. Vonn, 535 U.S. 55, 74-75 (2002). In simple cases, such as 

conspiracy to possess with intent to distribute, it is generally sufficient that a 

reading of the indictment is followed by allowing the defendant an 

opportunity to ask questions. See United States v. Green, 882 F.2d 999, 1005 

(5th Cir. 1989); United States v. Jack, 686 F.2d 226, 229-30 (5th Cir. 1982). 

The assertions made in Cato’s plea agreement, along with the solemn 

declarations made during his rearraignment, carry a strong presumption of 

truth and regularity and indicate that Cato understood the nature of the 

charges against him. See United States v. McKnight, 570 F.3d 641, 649 (5th 

Cir. 2009); Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th Cir. 1985). 

Furthermore, the factual basis recited in the plea agreement, as well 

as the facts adduced from the record, including the presentence report --- to 

which Cato did not object and which was adopted by the district court ---

establish every element of the offense to which Cato pleaded guilty. See

United States v. Franklin, 561 F.3d 398, 402 (5th Cir. 2009); United States v. 

Hildenbrand, 527 F.3d 466, 475 (5th Cir. 2008); United States v. Baymon, 312 

F.3d 725, 727 (5th Cir. 2002); United States v. Adams, 961 F.2d 505, 512 (5th 

Cir. 1992). Cato does not demonstrate that he would not have pleaded guilty 

but for the omission of an adequate factual basis. United States v. Dominguez 

Benitez, 542 U.S. 74, 83 (2004). Accordingly, he cannotshow that the district 

court committed error, plain or otherwise, in concluding that his guilty plea 

was knowing and voluntary. Nepal, 894 F.3d at 208.

Because Cato did not allege that the Government breached the plea 

agreement in the district court, we review for plain error only. United States 

v. Kirkland, 851 F.3d 499, 502-03 (5th Cir. 2017). Even in light of the MJ’s

misstatement regarding the Government’s promise to advocate for a 

sentence at the low end of the calculated guidelines range, the Government’s 

assertion at sentencing that Cato’s behavior throughout the proceedings 

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could warrant an upward departure is not inconsistent with the Cato’s 

“reasonable understanding of the agreement.” United States v. Lewis, 476 

F.3d 369, 387-88 (5th Cir. 2007) (quoting United States v. Valencia, 985 F.2d 

758, 761 (5th Cir. 1993)).

The record reveals that Cato read and understood the plea agreement, 

which contained an “explicit, unambiguous waiver of appeal.” United States 

v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005). Thus, Cato’s appeal waiver 

was knowing and voluntary. See United States v. Higgins, 739 F.3d 733, 736 

(5th Cir. 2014); FED. R.CRIM. P. 11(b)(1)(N). Accordingly, he is bound by it 

unless the Government breached the plea agreement. See United States v. 

Gonzalez, 309 F.3d 882, 886 (5th Cir. 2002) (stating that where the 

Government has breached a plea agreement, the defendant is necessarily 

released from any waiver provision contained therein). The Government did 

not breach the plea agreement, and Cato does not argue that the waiver of 

appeal provision is otherwise invalid. Accordingly, we decline to address 

Cato’s sentencing claim. The judgment of the district court is 

AFFIRMED.

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