UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5145
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RAMIRO GOMEZ AGUILAR,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:06-cr-00018-RLV-CH-1)
Submitted: July 9, 2009 Decided: July 23, 2009
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Leslie C. Rawls, Charlotte, North Carolina, for Appellant.
Edward R. Ryan, Acting United States Attorney, Charlotte, North
Carolina, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ramiro Gomez Aguilar pled guilty pursuant to a plea
agreement to one count of conspiracy to possess with the intent
to distribute five kilograms of cocaine, in violation of
21 U.S.C. § § 841(b)(1)(A), 846 (2006). The district court
sentenced Aguilar to 120 months’ imprisonment, the minimum
imprisonment term required by statute. Aguilar contends on
appeal that, as a result of the magistrate judge’s error at the
Fed. R. Crim. P. 11 colloquy, * his guilty plea was not voluntary.
We affirm.
Because Aguilar did not move in the district court to
withdraw his guilty plea on the basis that the magistrate
judge’s error rendered his plea involuntary, his challenge is
reviewed for plain error. See United States v. Martinez, 277
F.3d 517, 524-25 (4th Cir. 2002). To establish plain error,
Aguilar must show that: (1) an error was made; (2) the error is
plain; and (3) the error affects his substantial rights. United
States v. Olano, 507 U.S. 725, 732 (1993). Even if Aguilar
makes this showing, however, correction of the error lies within
our discretion, which we will not exercise unless the error
“seriously affects the fairness, integrity or public reputation
*
Aguilar expressly consented to plead guilty before the
magistrate judge.
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of judicial proceedings.” Id. (internal quotation marks,
citations, and alteration omitted).
Under Fed. R. Crim. P. 11(b)(1)(I), a district court
is required, before accepting a defendant’s guilty plea, to
advise the defendant and ensure that he understands any
applicable mandatory minimum penalty. Fed. R. Crim. P.
11(b)(1)(I). To satisfy its obligation under the Rule, the
court must “clearly advise” the defendant of the applicable
minimum penalty. United States v. Good, 25 F.3d 218, 223
(4th Cir. 1994).
In this case, Aguilar was subject to a minimum term of
ten years’ imprisonment and a maximum term of life imprisonment.
See 21 U.S.C. § 841(b)(1)(A). At the Rule 11 colloquy, the
magistrate judge advised Aguilar that the “maximum penalty for
this offense is not less than ten years nor more than life
imprisonment.” Aguilar claims that the magistrate judge failed
to discharge his obligation to clearly advise him of the
applicable mandatory minimum penalty because this description of
the applicable prison terms is confusing and inaccurate.
Assuming without deciding that the magistrate judge’s
description of the applicable minimum penalty was error that was
plain, Aguilar is not entitled to relief because the error did
not impact his substantial rights. See United States v. Goins,
51 F.3d 400, 402-03 (4th Cir. 1995).
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An error impacts a defendant’s substantial rights if
it is so prejudicial as to affect the outcome of the
proceedings. See Martinez, 277 F.3d at 532. In the guilty plea
context, a defendant meets this standard by showing that he
would not have pled guilty but for the Rule 11 error. Id.
After review of the record, we conclude that Aguilar fails to
make this showing. Accordingly, we discern no plain error. We
therefore affirm the district court’s judgment. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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