IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-20796
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE AUGUSTO RUIZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-93-CR-7-7
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August 27, 1996
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Jose Ruiz appeals his conviction following a guilty plea for
conspiracy to possess with intent to distribute in excess of 5
kilograms of cocaine and marijuana. Ruiz contends that the
district court failed to comply with the requirements of Fed. R.
Crim. P. 11(c)(1) in accepting his guilty plea by: (1) failing to
admonish him that a fine up to $4,000,000 could be imposed; and
(2) failing to inform him that he was subject to an enhanced
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
No. 95-20796
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sentence under 21 U.S.C. § 851. Ruiz contends that the above
failures affected his substantial rights and requires the
reversal of his guilty plea. We have reviewed the record and the
briefs and conclude that any error committed by the district
court was harmless because Ruiz was clearly advised of the
maximum fine in his plea agreement and because he does not
affirmatively allege that the district court’s variance from Rule
11(c) requirements affected his decision to plead guilty. See
United States v. Johnson, 1 F.3d 298-303 (5th Cir. 1993)(en
banc). While the district court misstated Ruiz’s minimum penalty
by failing to take into account a sentence enhancement, such
error was rendered moot by the district court’s downward
departure and resultant sentence. Therefore, the error was
harmless. See Johnson, 1 F.3d at 302-03.
AFFIRMED.