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Click here for the full text of this decision FACTS:On Dec. 15, 2004, agents from the U.S. Bureau of Immigration and Customs Enforcement (ICE) observed Jorge E. Castro-Trevino purchase a large quantity of ammunition from a Wal-Mart in Brownsville. Later that day, Castro-Trevino attempted to return to Mexico via the Gateway International Bridge. When ICE agents inspected the vehicle, Castro-Trevino denied possession of ammunition. Castro-Trevino was then referred to the secondary inspection area, where he admitted to possessing ammunition in the vehicle. In total, the agents found 30 boxes, or 11,500 rounds, of ammunition. After being read his Miranda rights, Castro-Trevino admitted that he had entered the United States from Mexico solely to purchase the ammunition and that he knew it was illegal to export ammunition from the United States to Mexico. Castro-Trevino said that he was hired to purchase the ammunition but refused to disclose who had hired him, taking full responsibility for his actions. On Jan. 11, 2005, the grand jury returned a one-count indictment charging Castro-Trevino with the offense of knowingly and willfully exporting from the United States to Mexico ammunition designated as a defense article on the U.S. Munitions List, without first acquiring a license or written authorization from the State Department. On Feb. 18, 2005, before a U.S. magistrate judge, Castro-Trevino entered a plea of guilty to the offense. The magistrate judge then issued his report and recommendation that the district court accept the guilty plea. On May 24, 2005, the district court in open court adopted the magistrate’s report and recommendation, accepted the guilty plea and found Castro-Trevino guilty of the offense charged in the indictment. The district court then sentenced Castro-Trevino to 46 months’ imprisonment and three years of supervised release. Castro-Trevino timely appealed, contending that there was an insufficient factual basis for his guilty plea in violation of Federal Rule of Criminal Procedure 11(b)(3), in that the evidence shows only an attempt to export, not a completed exportation as charged in the indictment. HOLDING:Affirmed as modified. Federal Rule of Criminal Procedure 11(b)(3) requires that before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea. Because Castro-Trevino objected to the Rule 11 error for the first time on appeal, this court reviewed for plain error only. Under plain error review, the court stated that Castro-Trevino bore the burden to show that there was an error, the error was clear and obvious and the error affects his substantial rights. Further, the court stated that even if Castro-Trevino established clear error, it would not vacate the judgment unless the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” To show prejudice, Castro-Trevino had to show “a reasonable probability that, but for the error, he would not have entered the plea.” Both parties agreed that the record lacked a factual basis for Castro-Trevino’s guilty plea, so the court stated that first two prongs of the plain error review were satisfied. The court then examined whether Castro-Trevino’s substantial rights were adversely affected. The court stated that Castro-Trevino failed to demonstrate that but for the Rule 11 error, he would not have entered his guilty plea. The court noted that the same statutory and guideline sentencing range applied for both offenses; there was no indication he would have received a reduced sentence; the indictment gave sufficient notice as to the charges pending against him; and the factual record accepted by both parties and relied upon by both the district court and the magistrate judge indicated the full nature of his offense. In short, the court found that after reviewing the record and Castro-Trevino’s arguments, it was not satisfied that “the probability of a different result is”sufficient to undermine confidence in the outcome’ of the proceeding.” The court stated that it was confident in the earlier proceeding because Castro-Trevino admitted under oath that he attempted to export ammunition in violation of the law, voluntarily pleaded guilty to that prohibited behavior, and had every opportunity in the court below to raise the points he brought up for the first time on appeal. Consequently, the court modified the judgment to reflect conviction for attempted exportation of ammunition rather than the completed offense, and affirms the judgment as so modified. OPINION:Garwood, J.; King, Garwood and Jolly, J.J.

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