Lack of factual basis for guilty plea is plain error

U.S. v. Carillo, 860 F.3d 1293 (6/23/17) (N.M.) (Published) - The 10th finds plain error in the magistrate judge's failure to establish a factual basis for Mr. Carillo's 100-gram-heroin-conspiracy guilty plea. The 10th finds nowhere in the record [not in the indictment, plea hearing or PSR] support for inferring the involvement of 100 grams of heroin was foreseeable to Mr. Carillo or that Mr. Carillo's single purchase of 50 grams was an act intended to further the aims of the larger conspiracy. The plea hearing plainly violated Fed. R. Crim. P. 11(b)(3)'s factual basis requirement. To establish the third substantial-rights plain error prong for an 11(b)(3) violation, as opposed to other Rule 11 violations, the defendant need not prove he would have pleaded guilty absent the error. He just has to show there is no factual support anywhere in the record. Reversal required here. Similarly, the 10th notes Rule 11(b)(1)(G) was violated because no one identified all the offense's elements at the plea hearing. The 10th says it has serious doubts whether the presumption that counsel informed the defendant of the elements applies in this case where there is nothing in the record to corroborate the presumption. But it refuses to decide the issue. The 10th refuses to grant relief for the misstatement of the mandatory minimum at the plea hearing. Mr. Carillo had other sources for that information and apparently the plea negotiations centered around trying to avoid the mandatory minimum. Back to district court for Mr. Carillo where apparently there is no evidence of the charge he pleaded guilty to.