United States v. Llamas

United States Court of Appeals
for the Fifth Circuit

No. 20-40219
Summary Calendar

United States of America,

Plaintiff—Appellee,

versus

Benjamin Llamas,

Defendant—Appellant.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:18-CR-1336-4

Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
Benjamin Llamas pled guilty to conspiracy to possess with intent to
distribute a synthetic cannabinoid mixture. He was sentenced to 168 months
of imprisonment and three years of supervised release. On appeal, Llamas
asserts that the district court plainly erred by accepting a factual basis for his

*
Pursuant to 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opinion should not be published and is not precedent except under the limited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
December 16, 2020

Lyle W. Cayce
Clerk
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No. 20-40219
2
plea that failed to establish his knowledge of the conspiracy or his voluntary
participation in it.
To prevail on plain error review, Llamas must show a clear and
obvious error that affects his substantial rights. If he does so, this court has
the discretion to correct the error, but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. United States v. Marek,
238 F.3d 310, 315 (5th Cir. 2001) (en banc). In assessing the sufficiency of
the factual basis under the plain error standard, this court “may look beyond
those facts admitted by the defendant during the plea colloquy and scan the
entire record for facts supporting his conviction.” United States v. Trejo, 610
F.3d 308, 313 (5th Cir. 2010).
To establish a conspiracy under 21 U.S.C. § 846, the Government
must prove that (1) there was an agreement between two or more persons to
violate federal drug laws; (2) the defendant knew of the agreement; and
(3) the defendant voluntarily participated in the conspiracy. United States
v. Thomas, 690 F.3d 358, 366 (5th Cir. 2012). Circumstantial evidence may
be used to establish both the existence of a conspiracy and a person’s
voluntary participation. Id.
By pleading guilty and accepting the Government’s factual basis
without lodging a specific objection, Llamas accepted that he was part of a
group that manufactured and distributed synthetic cannabinoids in the
Corpus Christi area. Llamas’s testimony at his sentencing hearing also
referenced his involvement in the conspiracy, and he accepted being
associated with two other named co-conspirators. The Government also
presented evidence that Llamas used his Facebook account to advertise
synthetic cannabinoids for sale and to connect with buyers, and that he
engaged in hand-to-hand drug transactions. The evidence further showed
that Llamas had ties to an apartment belonging to one of his co-conspirators.
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No. 20-40219
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Officers observed that Llamas engaged in drug sales from this apartment. A
search warrant executed after Llamas’s arrest revealed a synthetic
cannabinoid laboratory located there. These facts gleaned from the plea
colloquy and relied upon in the presentence report, as well as inferences fairly
drawn from evidence presented at the sentencing hearing, support the
adequacy of the factual basis. See Trejo, 610 F.3d at 317; see also United States
v. Dean, 59 F.3d 1479, 1486 (5th Cir. 1995). Llamas has failed to establish a
clear or obvious error. Marek, 238 F.3d at 315.
The judgment is AFFIRMED.
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