No Plain Error for Rule 11 Factual-Basis Challenges Turning on Disputable Inferences and Unsettled Construction of 18 U.S.C. § 933(a)(2)

Case: United States v. Hernandez (5th Cir. Aug. 26, 2026) (per curiam) (unpublished)

1. Introduction

Jose Luis Hernandez pleaded guilty in the Southern District of Texas to two counts arising from a rifle purchase arranged through another man, S.M. After the district court required the Government to elect a theory, Count One proceeded as a conspiracy charge under 18 U.S.C. § 933(a)(3) (conspiracy) to commit the receipt offense described in § 933(a)(2) (receipt knowing or having reasonable cause to believe the receipt would constitute a felony). Count Two charged aiding and abetting a false statement to a federally licensed dealer under § 922(a)(6).

On appeal, Hernandez challenged only Count One and did so for the first time: he argued the district court accepted his guilty plea without an adequate factual basis under Fed. R. Crim. P. 11(b)(3). His theory had two parts: (1) S.M. was allegedly a government informant, defeating the “two-person” requirement for conspiracy; and (2) the record allegedly failed to show that Hernandez’s receipt “would constitute a felony” as required by § 933(a)(2).

2. Summary of the Opinion

The Fifth Circuit affirmed. Applying plain-error review, it held that even assuming deficiencies in the factual basis, any error was not “clear or obvious.” The court emphasized that (a) whether S.M. was an informant at the time of agreement depended on contestable inferences from the record, and (b) no binding authority construed § 933(a)(2), making any asserted Rule 11 error particularly ill-suited for satisfaction of plain-error prong two.

The panel also remanded for the limited purpose of correcting a clerical error in the written judgment under Fed. R. Crim. P. 36, because the judgment misdescribed Count One as “Aiding and Abetting the Trafficking of Firearms” rather than a conspiracy under § 933(a)(3).

3. Analysis

A. Precedents Cited

The opinion is largely a synthesis of Fifth Circuit and Supreme Court plain-error and Rule 11 doctrine, using prior cases to define the standard and then applying it to a record-dependent factual-basis attack.

• United States v. Trejo, 610 F.3d 308 (5th Cir. 2010): Supplies the core Rule 11(b)(3) framing—there must be a factual basis showing the admitted conduct “is sufficient as a matter of law to establish” the offense—and reinforces that unpreserved factual-basis challenges are reviewed for plain error. The panel also leans on Trejo’s caution that when alleged insufficiency turns on “contestable inference” not squarely resolved by circuit precedent, the error is unlikely to be “clear or obvious.”
• United States v. Marek, 238 F.3d 310 (5th Cir. 2001) (en banc): Cited through Trejo to anchor that plain-error is the correct standard when no Rule 11 factual-basis objection was made below.
• United States v. Garcia-Paulin, 627 F.3d 127 (5th Cir. 2010) and United States v. Castro-Trevino, 464 F.3d 536 (5th Cir. 2006): Provide the three prongs quoted by the panel (error; clear/obvious; substantial rights), and the “reasonable probability” formulation for prejudice in the plea context.
• Puckett v. United States, 556 U.S. 129 (2009) and United States v. Olano, 507 U.S. 725 (1993): Establish that an error is “clear or obvious” only when not “subject to reasonable dispute,” a phrase doing heavy work here because Hernandez’s claims required disputable inferences and unsettled statutory construction.
• Henderson v. United States, 568 U.S. 266 (2013) and Johnson v. United States, 520 U.S. 461 (1997): Support the rule that “clear or obvious” is evaluated under the law “at the time of appellate consideration,” underscoring that even if the law was unsettled earlier, it is current clarity that matters.
• United States v. Escajeda, 8 F.4th 423 (5th Cir. 2021) and United States v. Nepal, 894 F.3d 204 (5th Cir. 2018): Define the “wide look” approach in reviewing a factual basis for plain error—the appellate court may examine the entire record and draw “reasonable inferences” supporting the plea. Escajeda also supplies a key conspiracy limitation: no conspiracy can be formed with a government informant because the informant lacks the requisite criminal purpose.
• United States v. Montgomery, 210 F.3d 446 (5th Cir. 2000): Provides the baseline elements of conspiracy—an agreement between at least two individuals who knowingly and voluntarily intend to pursue an unlawful objective.
• United States v. Delgado, 672 F.3d 320 (5th Cir. 2012) (en banc): Cited via Escajeda to reinforce the informant limitation—agreement with an informant is not enough.
• United States v. Porter, 68 F.3d 468 (5th Cir. 1995) and United States v. Asibor, 109 F.3d 1023 (5th Cir. 1997): Provide the timing principle: the informant rule turns on the co-actor’s status when the conspiratorial agreement occurred; a conspiracy can exist with someone “prior to becoming an informer.”
• United States v. Brandon, 965 F.3d 427 (5th Cir. 2020): Reaffirms that to establish substantial-rights prejudice from a plea error, the defendant must show a reasonable probability he would not have pleaded guilty but for the error.
• United States v. Jones, 88 F.4th 571 (5th Cir. 2023) and United States v. McGavitt, 28 F.4th 571 (5th Cir. 2022): Supply the panel’s practical plain-error rule for novel statutory questions: the “absence of binding authority is often dispositive” at prong two.
• Miranda v. Arizona, 384 U.S. 436 (1966): Not a merits driver here, but a key fact marker—S.M.’s cooperation followed Miranda warnings, supporting an inference that he began cooperating only after the stop rather than being an agent beforehand.

B. Legal Reasoning

(1) Conspiracy and the informant problem. Hernandez sought to collapse Count One by arguing S.M. was a government informant; if so, there would be no genuine two-person conspiratorial agreement. The panel accepted the legal premise (agreement with an informant cannot form a conspiracy) but focused on timing: under United States v. Porter and United States v. Asibor, the dispositive question is whether S.M. was an informant when the agreement was formed.

The record, viewed through the “wide look” lens of United States v. Escajeda and United States v. Nepal, supported a reasonable inference that: (i) the dealer, not S.M., alerted ATF; (ii) ATF already had Hernandez under investigation; (iii) S.M. spoke only after the stop, arrest, and Miranda warnings; and (iv) S.M. entered the arrangement for payment, filling out ATF Form 4473 so Hernandez could obtain the firearm. From these facts, the court reasoned it was at least reasonably disputable that S.M. became an informant only after the conspiracy had already been formed or completed.

That mattered procedurally: if competing inferences exist and circuit law does not squarely resolve which inference must prevail, then under Puckett v. United States, the alleged error is “subject to reasonable dispute” and cannot satisfy the “clear or obvious” requirement. The panel explicitly analogized to United States v. Trejo, declining to find plain error where the challenge turned on contestable inference.

(2) “Would constitute a felony” under 18 U.S.C. § 933(a)(2). Hernandez also argued that the factual basis did not establish the statute’s “would constitute a felony” element because the only identified felony was the § 922(a)(6) false-statement offense, and he claimed that felony was not the “receipt.” The panel did not definitively interpret § 933(a)(2); instead, it treated the interpretive uncertainty as decisive under plain-error prong two.

Relying on United States v. Jones (quoting United States v. McGavitt), the court emphasized that no Supreme Court, Fifth Circuit, or other court-of-appeals decision had construed § 933(a)(2). That absence of binding authority meant Hernandez could not show that the district court’s acceptance of the plea (even if arguably mistaken) was clearly or obviously erroneous.

(3) Substantial rights and the overall record. Although the panel’s affirmance ultimately rested on prong two, it also signaled skepticism that Hernandez could prove prejudice under prong three. The court highlighted that he did not contest Count Two, received no prison time (probation), and returned to plead guilty after an earlier re-arraignment revealed the very deficiency he later pressed on appeal. The panel also cited record facts suggesting culpability and motive (firearms traced to Hernandez in Mexico, large cash payments, long-term unemployment, and use of a straw buyer), reinforcing that “reasonable inferences” supported the plea.

(4) Clerical-error remand. Separately, the panel applied Fed. R. Crim. P. 36 to remand for correction of the written judgment’s misdescription of the offense of conviction—an administrative but important safeguard for accurate records affecting supervision, collateral consequences, and later proceedings.

C. Impact

Although unpublished and nonprecedential under Fifth Circuit rules, the opinion is a clear signal on how the court is likely to handle unpreserved Rule 11 factual-basis attacks:

• Disputable-inference barrier to plain error: When the sufficiency of the factual basis hinges on factual inferences (e.g., whether a participant was an informant at the relevant time), appellants will struggle to show “clear or obvious” error absent controlling authority compelling a contrary inference.
• Novel-statute barrier to plain error: Where an element depends on an unconstrued or unsettled statute (here, § 933(a)(2)), defendants face an especially steep climb at prong two, consistent with the Fifth Circuit’s recurring approach that lack of binding authority is often dispositive.
• Practical lesson for plea litigation: If a defendant anticipates a statutory-element dispute, preserving it in the district court—through a Rule 11 objection or conditional plea strategy where available—may be decisive, because plain-error review strongly favors affirmance in uncertain legal terrain.
• Record-accuracy enforcement: The Rule 36 remand underscores that even when convictions stand, the Fifth Circuit will require judgments to match the offense of conviction—particularly important for later interpretation by probation, the Bureau of Prisons, immigration authorities, and courts considering enhancements.

4. Complex Concepts Simplified

• “Factual basis” (Rule 11(b)(3)): Before accepting a guilty plea, the judge must ensure there are facts in the record that, if true, satisfy every element of the offense—so the plea is not a legal mismatch.
• Plain-error review: If the defendant did not object in the trial court, the appellate court will reverse only for (1) error, (2) that is clear/obvious, and (3) that likely mattered to the decision to plead guilty (plus a discretionary fourth consideration, not reached in detail here).
• “Clear or obvious”: An error is not “clear” if reasonable judges could disagree about it—because the law is unsettled or because the conclusion depends on contested inferences from facts.
• Conspiracy vs. informant: Conspiracy requires at least two people genuinely agreeing to commit a crime. An informant acting for the government generally cannot be the second conspirator because the informant lacks real criminal intent. But a person can be a conspirator before later becoming an informant; timing is crucial.
• Duplicity: A duplicitous count improperly charges multiple distinct offenses in a single count, risking jury confusion and unclear verdicts. Here it led to the Government electing a single theory (conspiracy).
• Straw purchase / ATF Form 4473: A “straw buyer” is someone who fills out the dealer paperwork and represents themselves as the true purchaser when the gun is for someone else. Form 4473 is the required federal form used for firearm transfers by licensed dealers.
• Clerical error (Rule 36): Courts may correct mistakes in the written judgment that do not reflect what was actually decided (e.g., mislabeling the count of conviction).

5. Conclusion

United States v. Hernandez affirms a guilty plea to a § 933(a)(3) conspiracy under a stringent plain-error lens: when a Rule 11 factual-basis challenge depends on (i) disputable inferences (such as the timing of informant status) or (ii) an element in an unconstrued statute (§ 933(a)(2)), the Fifth Circuit is unlikely to deem any arguable deficiency “clear or obvious.” At the same time, the court enforced accuracy in the judgment through a limited Rule 36 remand, highlighting the continuing importance of correct offense descriptions even where the conviction and sentence are otherwise affirmed.