Unpublished Disposition, 937 F.2d 614 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 614 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Francisco BAEZA-NUNEZ, Defendant-Appellant.

No. 89-10392.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 12, 1991.Decided July 11, 1991.

Before TANG, SKOPIL and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM* 

Francisco Baeza-Nunez entered a guilty plea to one count of interstate travel in aid of racketeering, 18 U.S.C. § 1952. During the hearing on the plea, Baeza-Nunez protested his innocence of any crime and stated that he was entering the plea only to avoid exposure to a much heavier sentence if convicted of the heroin charges on which he was originally indicted. The district court accepted the plea and sentenced Baeza-Nunez to three years in prison, to be followed by three years of supervised release. Baeza-Nunez appeals his conviction, arguing that the plea should be vacated because it was not supported by a sufficiently strong factual basis. We affirm.

DISCUSSION

In North Carolina v. Alford, 400 U.S. 25, 37 (1970), the Supreme Court held that courts could accept guilty pleas from defendants who simultaneously maintained their complete innocence of wrongdoing if "the record before the judge contains strong evidence of actual guilt." See also United States v. Neel, 547 F.2d 95, 96 (9th Cir. 1976).

Baeza-Nunez pleaded guilty to a charge of travelling in interstate commerce with the intent to promote, carry on, and facilitate the carrying on of an unlawful activity, specifically a business enterprise involving a controlled substance. 18 U.S.C. § 1952(a) (3), (b) (1). The elements of such an offense are: (i) interstate travel or travel from another country to the United States;1  (ii) an intent to promote, facilitate, or carry on an unlawful activity; (iii) performance or attempted performance of the unlawful activity; (iv) the existence of a continuous business enterprise; and (v) one act in interstate commerce in furtherance of that enterprise. See 18 U.S.C. § 1952; United States v. Tavelman, 650 F.2d 1133, 1140 (9th Cir. 1981), cert. denied, 455 U.S. 939 (1982); United States v. Gibson Specialty Co., 507 F.2d 446, 449 (9th Cir. 1974).

In determining the sufficiency of the facts supporting the plea, the district court may rely on anything that appears in the record. Notes of Advisory Committee on Rules, Fed. R. Crim. P. 11(f) (1974 amendment). The court must satisfy itself that there is sufficient evidence to conclude that the conduct admitted by the defendant constitutes the offense charged. United States v. Barker, 681 F.2d 589, 592 (9th Cir. 1982). The court need not be convinced beyond a reasonable doubt, however. Neel, 547 F.2d at 96.2 

The plea agreement contained two sections providing a factual context for the plea. Under the heading, "Agreements Regarding Offense Conduct and Specific and/or General Offense Characteristics," the agreement stated:

The following facts accurately represent the defendant's readily provable relevant offense conduct and specific offense characteristics:

The defendant travelled to Arizona from Mexico knowing that persons he was travelling with were to distribute heroin. Prior to that date, the defendant had assisted.

Later in the plea agreement, Baeza-Nunez acknowledged the factual basis for his plea.

I further agree that if this matter were to proceed to trial the government could prove the following facts beyond a reasonable doubt:

On or about January 16, 1989, I travelled from Mexico to Arizona to facilitate the carrying on or [sic] an unlawful activity, that is, I assisted in the delivery of a quantity of heroin to people that I later learned were undercover agents of the Drug Enforcement Administration.

The presentence report described Mr. Baeza-Nunez's role in the offense in the following terms:

Mr. Bazua-Vizcarra made all the arrangements with the confidential informant and Jesus Zamaran brought the heroin into the room along with Francisco Baeza-Nunez. Arrangements were made to purchase seven to ten kilos of heroin at a future date.

These statements of fact, admitted by Baeza-Nunez, provide the requisite strong evidence of a violation of 18 U.S.C. § 1952. The travel from Mexico to Arizona satisfies the interstate travel requirement. The statement that Baeza-Nunez travelled in order to facilitate the delivery of heroin satisfies the "intent to promote, carry on, or facilitate" element. The delivery of the heroin satisfied the actual performance requirement. The amount of heroin involved evinced a continuous business enterprise. Tavelman, 650 F.2d at 1140.3  Finally, the travel to assist the delivery amounted to an act in interstate commerce in furtherance of the narcotics enterprise.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

The act of interstate travel need not be done knowingly or intentionally. United States v. Stafford, 831 F.2d 1479, 1485 n. 8 (9th Cir. 1987)

 2

Baeza-Nunez argues that the district court relied only on the facts contained in the presentence report as a basis for the plea. A review of the transcripts of the plea and sentencing hearings reveals that the court relied on the facts recited in the plea agreement as well. The statement adopting the facts in the presentence report pertained only to the court's decision on sentencing. In fact, when counsel for Baeza-Nunez attempted to rely solely upon the facts outlined in the presentence report during the sentencing hearing, the court reminded counsel that the plea agreement contained additional facts. The court thus correctly relied on more than the presentence report in reaching its decision

 3

The statute requires only that the business be continuous. The government need not show that the defendant's acts were continuous or repeated. United States v. Vaccaro, 816 F.2d 443, 454 (9th Cir.), cert. denied, 484 U.S. 914 (1987)