IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-10926
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BOBBY LYN JOHNSON, JR.,
a/k/a Bob, Jr.,
Defendant-Appellant.
_____________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:95-CR-098-G)
_____________________________________________________
September 3, 1996
Before KING, GARWOOD, and DENNIS, Circuit Judges.
PER CURIAM:*
Bobby Lyn Johnson, Jr., appeals his guilty-plea conviction
to conspiracy to possess with intent to distribute cocaine. He
contends that his guilty plea was rendered unknowing and
involuntary by the district court’s failure to adequately explain
the nature of the conspiracy charge against him.
Johnson argues that the district court failed to comply with
*
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that this opinion should not be published and is not precedent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.
the requirements of Fed. R. Crim. P. 11 in accepting his guilty
plea by: (1) failing to explain the elements of the offense of
conspiracy; (2) failing to ascertain whether Johnson understood
the legal elements of the offense of conspiracy; and (3) failing
to explain how his conduct fell within the definition of
conspiracy.
The elements of a conspiracy to possess with intent to
distribute cocaine are: (1) the existence of an agreement to
possess cocaine with the intent to distribute, (2) knowledge of
the agreement, and (3) voluntary participation in the agreement.
United States v. Fierro, 38 F.3d 761, 768 (5th Cir. 1994), cert.
denied, 115 S. Ct. 1388 and 1431 (1995). The district court’s
explanation of the nature of the charge to Johnson at the plea
colloquy hearing included only the first element, the existence
of an agreement to violate the law. Thus, it is possible that
this explanation did not adequately explain to Johnson the nature
of the offense to which he was pleading guilty.
However, assuming the district court’s explanation of
conspiracy was inadequate, Johnson has not demonstrated that his
substantial rights were affected requiring reversal. See United
States v. Johnson, 1 F.3d 296, 302 (5th Cir. 1993) (en banc)
(holding that, in reviewing a district court’s mistake in the
Rule 11 colloquy for harmless error, we must determine if the
district court’s mistake could “reasonably be viewed as having
been a material factor affecting [defendant]’s decision to plead
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guilty”). If the record shows that defense counsel explained the
nature of the offense to the defendant or that the defendant
otherwise understood the charge, the failure of the district
court to explain those elements does not render the plea
involuntary. Davis v. Butler, 825 F.2d 892, 893-94 (5th Cir.
1987). Moreover, “[f]or simple charges . . . a reading of the
indictment, followed by an opportunity given the defendant to ask
questions about it will usually suffice.” United States v.
Green, 882 F.2d 999, 1006 (5th Cir. 1989)(internal quotations and
citations omitted).
At the plea colloquy hearing, Johnson verified that his
defense counsel had fully discussed with him the conspiracy
charge against him. The district court also read the indictment
and gave Johnson the opportunity to state whether he understood
the charge. Johnson replied that he did. Johnson also affirmed
that his signed plea agreement and factual resume indicated his
understanding of the underlying factual basis for the conspiracy
charge. These factors indicate that Johnson sufficiently
understood the nature of the charges against him such that any
deficiency in the district court’s explanation did not render his
guilty plea involuntary. See United States v. Jack, 686 F.2d
226, 230 (5th Cir. 1982) (holding that the court’s reading of
indictment charging conspiracy at the plea colloquy hearing and
affirmation that the defendant had discussed the charge with his
attorney were sufficient to demonstrate that the defendant
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understood the nature of the charge).
Because Johnson does not demonstrate that any variance by
the district court from the proceedings required by Fed. R. Crim.
P. 11 affected his substantial rights, requiring reversal, we
AFFIRM the judgment of the district court.
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