United States v. Felipa Herrera Caballero

333 F. App'x 485

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 26, 2009
• Docket: 08-15655
• Status: Unpublished

Opinion

PER CURIAM:

Felipa Herrera Caballero appeals her conviction for possession and use of another person’s identification during a felony, a violation of 18 U.S.C. § 1028A. 1 Caballero argues on appeal the Government selectively prosecuted her based on her ethnicity, gender, and physical condition.

Generally, a defendant waives all nonju-risdictional defects upon pleading guilty to an indictment. United States v. Smith, 532 F.3d 1125, 1127 (11th Cir.2008); see also United States v. Jennings, 991 F.2d 725, 730 (11th Cir.1993) (assuming, without comment, that selective prosecution of a defendant would constitute a defect in the indictment).

Caballero never raised the issue of selective prosecution before the trial court, but instead pled guilty to the charges in the indictment. She thus has waived this issue on appeal. See Smith, 532 F.3d at 1127. Accordingly, we affirm her conviction and sentence. 2

AFFIRMED.

1 . Caballero does not challenge her convictions for unlawful re-entry into the United States, a violation of 8 U.S.C. § 1326(a), and false representation in order to gain entry into the United States, a violation of 18 U.S.C. § 911.

2 . To the extent Caballero’s Notice of Supplemental Authority can be construed as raising an argument that there was an insufficient factual basis to support her guilty plea, see Fed.R.Crim.P. 11(b)(3); Flores-Figueroa v. United States, — U.S. -, 129 S.Ct. 1886, 1888, 173 L.Ed.2d 853 (2009), we decline to consider this issue because it was not raised in Caballero's initial brief, see United States v. Valladares, 544 F.3d 1257, 1269 n. 2 (11th Cir.2008). Furthermore, even if we were to reach the merits of this issue, we would uphold Caballero's conviction because she did not raise a Rule 11 objection in district court, and the court did not plainly err in failing to anticipate the Supreme Court's decision in Flores-Figueroa.