United States v. Jose Covian-Sandoval

Jose Covian-Sandoval (“Covian”) appeals his conviction and sentence for attempted illegal entry under 8 U.S.C. § 1326 . Covian contends that the district court’s plea colloquy was inadequate under Federal Rule of Criminal Procedure 11 (“Rule 11”), and that the district court’s enhancement of Covian’s sentence violated Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). Because we conclude that any such errors do not warrant relief under the plain error standard of review, we affirm.

I.

On February 3, 2005, Covian was indicted for attempting to enter the United States without permission after having been “excluded, deported and removed from the United States to Mexico” in violation of 8 U.S.C. §. 1326. At trial, Covian pleaded guilty to the charge without a plea agreement. During the plea colloquy, defense counsel offered the following factual proffer:

Both Covian and the prosecution agreed to that factual basis for the plea. At the conclusion of the plea colloquy, the district court mirrored closely the language of the indictment in asking for the plea:

Covian pleaded guilty, and the court accepted the plea.

In its presentence report, the…