IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-11522
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANDRA D. SWEET, also known as
Sandra P. Smith,
Defendant-Appellant.
Appeal from the United States District Court
for the
Northern District of Texas
No. 3:96-CR-0156-1-R)
November 19, 1997
Before JOHNSON, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
Sandra D. Sweet appeals her guilty-plea conviction for bank
fraud committed in violation of 18 U.S.C. § 1344. Sweet first
asserts that her plea was not knowing and voluntary because the
district court did not follow the requirements of Federal Rule of
Criminal Procedure 11 in several respects. Second, she argues that
the indictment was insufficient because it failed to allege an
*
Pursuant to 5th CIR. R. 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this opinion should not be published and is not precedent except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 5th CIR. R. 47.5.4.
essential element of the offense, namely that the wording of the
indictment did not mirror the language of 18 U.S.C. § 20. Third,
she appeals the district court’s calculation of her criminal
history under the guidelines.
We need not determine whether harmless error or plain error
analysis governs our review of the alleged variances in Rule 11
procedures because reversible error does not exist under either
standard. To analyze the validity of a guilty plea, we conduct a
two step inquiry focusing on whether the district court varied from
Rule 11 procedures and if so, whether such variance affected the
substantial rights of the defendant. United States v. Johnson, 1
F.3d 296, 298 (5th Cir. 1993)(en banc). After a careful review of
Sweet’s arguments and the record in this case, we hold that Sweet
has not demonstrated that any variances in Rule 11 procedure
affected her substantial rights.
Second, Sweet has not shown that the failure of the indictment
to allege that Texin’s Credit Union was a “financial institution”
with the precise language used in 18 U.S.C. § 20 renders the
indictment insufficient. When the question of the sufficiency of
an indictment is raised for the first time on appeal and the
defendant has failed to assert prejudice, during the court’s de
novo review of the sufficiency of the indictment the “indictment is
to be read with maximum liberality finding it sufficient unless it
is so defective that by any reasonable construction, it fails to
charge the offense for which the defendant is convicted.” United
2
States v. Fitzgerald, 89 F.3d 218, 221 (5th Cir.), cert. denied,
117 S.Ct. 446 (1996). Such a reading is appropriate in the present
case. After careful review, we hold that the indictment was
sufficient.1
Third, we do not address Sweet’s challenge to the calculation
of her criminal history. As part of her plea agreement, Sweet
waived her right to appeal on this ground. We review the record de
novo to determine whether a defendant’s waiver of appeal is
voluntary and informed. United States v. Melancon, 972 F.2d 566,
567-68 (5th Cir. 1992). When “the record of the Rule 11 hearing
clearly indicates that a defendant has read and understands his
plea agreement, and that he raised no question regarding a waiver
of appeal provision, the defendant will be held to the bargain to
which he agreed...” United States v. Portillo, 18 F.3d 290, 293
(5th Cir.), cert. denied, 513 U.S. 893 (1994). After a thorough
review of the record, it appears that Sweet understood her plea
agreement and raised no questions regarding a waiver of appeal
provision. We therefore hold that she waived her right to appeal
this ground.
Therefore, for the foregoing reasons, the district court’s
1
The National Credit Union Administration (NCUA) Board insures
member accounts of credit unions that are in compliance. 12 U.S.C.
§ 1781(a); see Waddell v. Forney, 108 F.3d 889, 891 (8th Cir.
1997). The National Credit Union Share Insurance Fund is used by
the NCUA Board as a revolving fund to carry out the
administration’s purposes. 12 U.S.C. § 1783(a).
3
judgment is AFFIRMED.
4