In USA v. Serrano-Beauvaix & Juma Pineda, 02-2286 & 02-2682, the facts seem to be thus:
Serrano, a former police officer who had been expelled from the force, helped to recruit Juma, a police officer at the time, to provide armed escort for a shipment of ten kilograms of cocaine in October, 2000. Juma rode with the drugs and carried a pistol. Serrano rode in another car and conducted counter-surveillance and advised his codefendants through cell phones. They each received a $5000 payment for their services in the crime.
Serrano argues that his plea was valid because the District Court didn’t “determine that there is a factual basis for the plea” under Fed. R. Crim. P. 11(b)(3). This issue was not raised below, and the court reviewed it for plain error. Here the court noted that since the District Court, analyzed the facts as they pertained to another count, and the plea agreement to that count (conspiracy) contained enough facts (that he possessed a gun) to sustain the plea.
He also raises a Booker argument, which the court holds that he waived. Therefore, an enhancement under U.S.S.G. § 3B1.1(c) (organizer, leader, manager, or supervisor) was warranted. Likewise, he argued this prior convictions criminal history was not adequately proven, but the court pointed out that his counsel did not seriously object. He also failed in his argument that the case should be remanded because the District Court would have sentenced him to something less had it not been bound by the guidelines, but the court pointed out that “Even post-Booker, the district court 'must consult those Guidelines and take them into account when sentencing.' ... And so the court had to consider both role in the offense and his criminal history.” Therefore, to argue that the court would not consider the factors in the guidelines fails as an argument.
The other defendant also made a safety valve argument, but he agreed in his plea agreement that he wasn’t eligible for it. So, this argument, as well as the one that a “jury, not a judge, should have made the factual determinations underlying his disqualification for the safety valve” failed.
Lipez and Torruella concurred (in what looks like a dissent), but I didn’t read it yet, but SL&P describes it here.