Was it plain error for a district court to convict petitioner on his plea of guilty to a crime never charged in the governing indictment?

QUESTIONS PRESENTED Count Eight of an Indictment charged Petitioner with aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). That statute criminalizes identity theft “during and in relation to any felony violation enumerated” in subsection 1028A(c). In Petitioner’s case, Count Eight alleged that Petitioner committed identity theft “during and in relation to” the specific predicate offense set out in Count Seven of that same Indictment: Access device fraud in violation of 18 U.S.C. § 1029(a)(5). App. F. Notwithstanding the specific allegation in the Indictment identifying access device fraud as the requisite predicate violation, Petitioner was advised at his rearraignment that he was pleading guilty to aggravated identity theft during and in relation to a completely different predicate offense: Wire fraud. [18 U.S.C. § 1343]. App. G. On plain error review, the Fifth Circuit held that altering the predicate violation to an offense other than the one expressly identified in the Indictment did not prejudice Petitioner. Accordingly, it affirmed Petitioner’s conviction on his plea of guilty to the Count Eight charge of aggravated identity theft in violation of 18 U.S.C. § 1028A(a)(1). App. A. QUESTION ONE Was it plain error for a District Court to convict Petitioner on his plea of guilty to a crime never charged in the governing Indictment? i QUESTION TWO When the substantive offense charged (i) is compound in nature and requires, as an essential element, proof of a qualifying predicate violation, and (ii) the indictment charges a specific felony as the qualifying predicate violation, is Rule 11 complied with when the plea colloquy informs Petitioner that he is pleading guilty to the substantive offense on the basis of a completely different predicate violation than the one identified in the Indictment? QUESTION THREE Did the Fifth Circuit correctly apply the plain error standard of review announced by this Court in United States v. Dominguez-Benitez, 542 U.S. 74 (2004) in rejecting Petitioner’s claim that it was plain error for the District Court to accept his plea? IL. THE PARTIES The parties to this case are the United States of America and Petitioner Lani Lucas Limane a/k/a Lukasz Chad Limane. Ill. RELATED CASES This Petition arises out of a consolidated appeal to the United States Court of Appeals for the Fifth Circuit from four separate judgments entered by the United i States District Court for the Northern District of Texas. The four cases were assigned the following case numbers at the District Court level: 1. United States v. Lukasz Chad Limane, No. 3:21-cr-00539-1 (N.D. Tex.); 2. United States v. Lukasz Chad Limane, No. 3:21-cr-00600-1 (N.D. Tex.); 3. United States v. Lani Lucas Limane, No. 3:19-cr-00620-1 (N.D. Tex.); 4. United States v. Lani Lucas Limane, No. 3:20-cr-00028-1 (N.D. Tex). Separate appeals were taken from the final judgments entered in all four cases. The Fifth Circuit originally assigned the four appeals separate Case Nos. 23-10112, 23-10114, 23-10115 and 23-10117. The cases were subsequently consolidated on appeal in response to Petitioner’s motion. On the merits, this Petition focuses on Petitioner’s plea of guilty to the aggravated identity theft charge in Count Eight Of the Indictment at issue in case no. 3:20-CR-0028-S (N.D. Tex.). The three other cases are impacted only because, if the Petition is granted and the sentence for aggravated identity theft in case no. 3:20-CR-0028-S is reversed or vacated, the sentence imposed in each of the three other cases will have to be vacated or otherwise adjusted because all three provide that the sentence for aggravated identity theft runs consecutive to the other terms of imprisonment imposed in those cases. iii