Summary Calendar UNITED STATES OF AMERICA v. Cosme Gonzalez-Rodriguez

* Pursuant to 5TH CIR. R. 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should not be published and is not precedent except under the limited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 CIR. R. 47.5.4.
1In its order issued in response to this court’s remand for a report from the
magistrate judge and review by the district court, the district court accepts the
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-51618
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
COSME GONZALEZ-RODRIGUEZ
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:06-CR-417-1
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Cosme Gonzalez-Rodriguez (Gonzalez) pleaded guilty to both counts of an
indictment that charged him with conspiracy to possess with intent to distribute
50 kilograms or more of marijuana and with possession with intent to distribute
50 kilograms or more of marijuana. The district court sentenced Gonzalez to 30
months of imprisonment and a three-year term of supervised release.1
United States Court of Appeals
Fifth Circuit
F I L E D
August 26, 2008
Charles R. Fulbruge III
Clerk

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No. 06-51618
magistrate judge’s recommendation to accept the appellant’s guilty plea, but the
order only specifically mentions the first count of the indictment. It is clear from the record that the
district judge misspoke and that the magistrate’s report was accepted in its entirety.
2
In his sole issue on appeal, Gonzalez argues that the factual basis orally
recited at his rearraignment hearing was insufficient to support his guilty plea.
Gonzalez does not contend that the factual basis was insufficient to support a
conviction under 21 U.S.C. § 841(a)(1). Instead, he argues only that there was
no allegation of drug quantity in the recited factual basis that would support a
plea to an offense involving 50 kilograms or more of marijuana pursuant to 21
U.S.C. § 841(b)(1)(C).
Because Gonzalez raises this issue for the first time on appeal, it is
reviewed for plain error. See United States v. Palmer, 456 F.3d 484, 489 (5th
Cir. 2006). To prevail on plain-error review, Gonzalez must show that an error
occurred, that the error was plain, which means clear or obvious, and that the
error affected his substantial rights. See United States v. Olano, 507 U.S. 725,
732-35 (1993). The indictment in this case, which was read aloud and to which
Gonzalez pleaded guilty, alleged the drug quantity at issue and was sufficient
to serve as the factual basis supporting Gonzalez’s pleas. See United States v.
Hildenbrand, 527 F.3d 466, 475 (5th Cir. 2008). Accordingly, he has not shown
plain error. See Olano, 507 U.S. at 732-35.
The judgment of the district court is AFFIRMED.

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