United States v. Reyna

REVISED

United States Court of Appeals,

Fifth Circuit.

No. 96-41212.

UNITED STATES of America, Plaintiff-Appellee,

v.

Miguel Enrique REYNA, Defendant-Appellant.

Nov. 25, 1997.

Appeal from the United States District Court for the Southern
District of Texas.

Before JOHN R. GIBSON*, JOLLY and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Miguel Reyna appeals from the judgment of conviction and the

sentence entered by the district court for his violation of 26

U.S.C. § 5861(d), the unlawful possession of a firearm which is not

registered in the National Firearms Registration and Transfer

Record. Before trial, Reyna entered a plea of guilty and the court

then sentenced him to 46 months and a term of supervised release of

three years. We affirm Reyna's conviction and sentence.

I

Except for the alleged "high-speed chase" between the police

and Reyna, the facts are largely undisputed in this case. The

Mission (Texas) Police Department responded to a call regarding the

discharge of a weapon. As officers arrived on the scene, they

*
Circuit Judge of the Eighth Circuit, sitting by designation.

1
observed Reyna leaving his residence in an automobile with his

minor child. When an officer stopped Reyna's vehicle shortly

thereafter, he found a short barrel shotgun under the driver's seat

that had a barrel length of approximately 121/2 inches and an

overall length of approximately 191/2 inches. The police then

arrested Reyna.

A federal grand jury indicted Reyna for knowingly possessing

a sawed-off shotgun. Ultimately, Reyna pled guilty to the charge.

During the plea colloquy, the court asked Reyna if he understood

the nature of the charge and Reyna stated that he was accused of

"possession of an unlawful firearm." Reyna further indicated that

the unlawful firearm was a sawed-off shotgun. The court then

rearraigned Reyna on the record and charged him with "knowingly

possess[ing] a firearm, namely a weapon made from a shotgun with an

overall length of less than 26 inches and a barrel of less than 18

inches ... not registered to him in the National Firearms

Registration and Transfer Record" in violation of section 5861(d).

Reyna stated that he understood the indictment and that he was

pleading guilty because he was guilty. The court also asked Reyna

if he understood that by pleading guilty, he was saying that he

"knew that it is against the law to have this firearm without

registering it with the National Firearms people." Reyna answered

in the affirmative.

The district court thereafter ordered the Probation Officer to

prepare a presentence investigation report ("PSR"). The PSR

recommended a two-point sentence enhancement pursuant to U.S.S.G.

2
§ 3C1.2 because Reyna "recklessly created a substantial risk of

death or serious bodily injury to another person in the course of

fleeing from law enforcement officers." The facts supporting the

two-point enhancement as alleged in the PSR were that Reyna

"initiated a high speed chase for several miles" and in his

"attempt to avoid or flee from arrest, he attempted to hit one of

the patrol units as he was driving in the middle of the road and

caused oncoming traffic to get off the roadway." At the sentencing

hearing, Reyna's attorney objected to the two-point enhancement and

disputed the facts as put forth by the PSR. Reyna's attorney

proffered contrary facts to the court that there was no "high speed

chase," that Reyna drove less than 9/10 of a mile from his home

(not "several miles"), that he was not "fleeing" the police, that

he stopped as soon as the police vehicle did a u-turn and activated

its lights and siren, that his near-collision with the patrol car

was accidental and caused by his failing brakes, and that no

oncoming traffic was forced off the roadway.

The government rested on its factual contentions as set out in

the PSR. The district court considered Reyna's proffer of facts, as

well as the contrary evidence in the PSR, and then denied Reyna's

objection to the two-point enhancement for reckless endangerment

during flight. The court later adopted all of the justifications

in the PSR as justification for the sentence. The district court

sentenced Reyna to serve a term of imprisonment of 46 months to be

followed by three years of supervised release. This timely appeal

followed.

3
 II

Reyna appeals his guilty plea on the ground that the district

court violated Rule 11 and the Due Process Clause of the Fifth

Amendment when the judge failed to inform Reyna in the plea

colloquy that a violation of section 5861(d) required Reyna to know

the characteristics of his weapon that brought it within the

statutory definition of "firearm."1 Because the plea colloquy

indicates that Reyna understood the illegal nature of his firearm

and no additional information would have affected his willingness

to plead guilty, we disagree.

A

Rule 11 provides that, "[b]efore accepting a plea of guilty or

nolo contendere, the court must address the defendant personally in

open court and inform the defendant of, and determine that the

defendant understands ... the nature of the charge to which the

plea is offered." FED.R.CRIM.P. 11(c)(1). In McCarthy, the seminal

Rule 11 case, the Supreme Court explained the purpose behind Rule

11:

First, although the procedure in Rule 11 has not been held to
be constitutionally mandated, it is designed to assist the
district judge in making the constitutionally required
determination that a defendant's guilty plea is truly
voluntary. Second, the Rule is intended to produce a complete
record at the time the plea is entered of the factors relevant
to this voluntariness determination.

McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 1170,

1
The characteristics that brought his sawed-off shotgun within
the statute were a barrel length less than 18 inches (Reyna's was
121/2 inches) or an overall length less than 26 inches (Reyna's was
191/2 inches). 26 U.S.C. § 5845(a)(2).

4
22 L.Ed.2d 418 (1969) (footnotes omitted).

When an appellant claims that a district court failed to

comply with Rule 11, we apply a two-question harmless error

analysis: (1) Did the sentencing court in fact vary from the

procedures required by Rule 11, and (2) if so, did such variance

affect substantial rights of the defendant.2 See United States v.

Still, 102 F.3d 118, 122 (5th Cir.1996), cert denied, --- U.S. ----

, 118 S.Ct. 43, --- L.Ed.2d ---- (1997) (No. 96-1440); United

States v. Johnson, 1 F.3d 296, 298 (5th Cir.1993) (en banc); FED.

R. CRIM. P. 11(h). Thus, we must decide what procedures were required

by Rule 11 in this case.

Reyna contends that the district court failed to inform him

of the "nature of the charge" because he was not told that section

5861(d) requires that a defendant know the characteristics of his

sawed-off shotgun that bring it within the statutory definition of

firearm. Cf. Staples v. United States, 511 U.S. 600, 114 S.Ct.

1793, 128 L.Ed.2d 608 (1994) (holding that Congress did not intend

to eliminate traditional mens rea element for violations of section

5861(d) when defendant possessed a machinegun). Whether or not

section 5861(d) has such a mens rea element for sawed-off shotguns

is a question of first impression in this Court.

2
Although Reyna did not present his claim of noncompliance
with Rule 11 in the district court, it is not waived. United
States v. Still, 102 F.3d 118, 122 n. 9 (5th Cir.1996), cert.
denied, --- U.S. ----, 118 S.Ct. 43, --- L.Ed.2d ---- (1997) (No.
96-1440). We can adjudicate the Rule 11 challenge on direct appeal
without an initial presentation of the particular arguments to the
district court. See id.; United States v. Coronado, 554 F.2d 166,
170 n. 5 (5th Cir.1977).

5
 Section 5861(d) makes it unlawful:

[T]o receive or possess a firearm which is not registered ...
in the National Firearms Registration and Transfer Record.

29 U.S.C. § 5861(d). Congress did not, however, extend this

provision to all "firearms" as that term is commonly understood,

nor to all "sawed-off shotguns." 26 U.S.C. § 5845(a)-(f); see

also United States v. Barr, 32 F.3d 1320, 1323 n. 4 (8th Cir.1994)

("Many weapons commonly thought of as firearms are not included in

the definition of "firearm' under the Act."). Instead, the

statutory definition of "firearm" is limited to specific types of

weapons with specific characteristics, including:

(1) a shotgun having a barrel or barrels of less than 18
inches in length; (2) a weapon made from a shotgun if such a
weapon as modified has an overall length of less than 26
inches or a barrel or barrels of less than 18 inches in
length; ...

26 U.S.C. § 5845(a). Although section 5861(d) is silent concerning

the mens rea required for a violation, the Supreme Court held in

Staples that section 5861(d) requires proof that a defendant know

the characteristics of his machinegun that make it a "firearm"

under the statute. Staples, 511 U.S. at 604, 619, 114 S.Ct. at

1796, 1804.

We believe that the Supreme Court's decision in Staples

constrains our decision on the relevant mens rea required for

violations of section 5861(d).3 Thus, we must confront directly

3
While it appears the government does not disagree with the
contention that Staples controls our decision in this case, it is
not clear what specific mens rea is required by Staples for the
case at hand. The government's brief concedes that "the Supreme
Court has held that knowledge of the illegal nature of the firearm
is an essential element of 26 U.S.C. § 5861(d)." [citing Staples v.

6
the question of whether the knowledge requirement implied by the

Court in Staples is limited to the facts of that case, where the

defendant possessed a semiautomatic rifle that had been converted

into a machine gun, or whether section 5861(d) also requires that

a defendant in possession of a sawed-off shotgun know the

characteristics of the shotgun that bring it within the statute.

Cf. Staples, 511 U.S. at 609, 114 S.Ct. at 1799 ("[T]he very

question to be decided is whether the defendant must know of the

particular characteristics that make his weapon a statutory

firearm.").

Six of the seven circuits that have addressed this issue for

sawed-off shotguns have held that section 5861(d) does require

proof that a defendant know the characteristics of his sawed-off

shotgun that bring it within the Act. See United States v.

Edwards, 90 F.3d 199, 203-04 (7th Cir.1996); United States v.

Dewalt, 92 F.3d 1209, 1212 (D.C.Cir.1996) (government conceding the

issue); United States v. Keen, 104 F.3d 1111, 1117-18 (9th

Cir.1996) (same); United States v. Mains, 33 F.3d 1222, 1229 (10th

Cir.1994); United States v. Starkes, 32 F.3d 100, 101 (4th

Cir.1994); United States v. Owens, 103 F.3d 953, 956 (11th Cir.)

(holding same for rifle with barrel less than 16 inches), cert.

denied, --- U.S. ----, 118 S.Ct. 44, --- L.Ed.2d ---- (1997)

One circuit has disagreed, holding that the government need

only prove that the defendant possessed the sawed-off shotgun and

United States ]. The government, however, does not explain what
they mean by "knowledge of the illegal nature of the firearm."

7
actually observed it. United States v. Barr, 32 F.3d 1320, 1324

(8th Cir.1994). In Barr, the Eighth Circuit rejected the argument

that a defendant has to know the length of the sawed-off shotgun or

its barrel and held that the "quasi-suspect" nature of the

sawed-off shotgun and simple observation of the weapon was

sufficient to support a conviction under section 5861(d). Barr, 32

F.3d at 1324. In holding that Staples did not apply to sawed-off

shotguns, the court quoted the following passage from the Supreme

Court's decision in Staples:

Of course, we might surely classify certain categories of
guns—no doubt including the machineguns, sawed-off shotguns,
and artillery pieces that Congress has subjected to
regulation—as items the ownership of which would have the same
quasi-suspect character we attributed to owning hand grenades
in Freed.

Staples, 511 U.S. at 611-12, 114 S.Ct. at 1800 (discussing United

States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971)

(holding that possessor of hand grenade did not have to know that

it was unregistered to violate section 5861(d))).

The quoted language does not support eliminating the Staples'

mens rea requirement for sawed-off shotguns. The only question at

issue in Freed was whether or not section 5861(d) had a mens rea

requirement that the defendant must know that his hand grenade was

unregistered. The Supreme Court held that because hand grenades

are "quasi-suspect," a violation of section 5861(d) does not

require that the defendant have knowledge that the firearm was

unregistered. Freed, 401 U.S. at 609, 91 S.Ct. at 1118. Thus, if

sawed-off shotguns are "quasi-suspect" weapons under Freed, it

simply means that a defendant does not have to have knowledge that

8
the shotgun is unregistered; it says nothing about whether a

defendant has to know that his shotgun has the characteristics that

bring it within the statute.

In fact, the Court explicitly stated in Staples that "our

determination [in Freed ] that a defendant need not know that his

weapon is unregistered suggests no conclusion concerning whether §

5861(d) requires the defendant to know of the features that make

his weapon a statutory "firearm'; different elements of the same

offense can require different mental states." Staples, 511 U.S. at

609, 114 S.Ct. at 1799. The Court further explained that,

[O]ur analysis in Freed ... rested entirely on the assumption
that the defendant knew that he was dealing with hand
grenades—that is that he knew he possessed a particularly
dangerous type of weapon (one within the statutory definition
of a "firearm").... The predicate for that analysis is
eliminated when, as in this case, the very question to be
decided is whether the defendant must know of the particular
characteristics that make his weapon a statutory firearm.

Staples, 511 U.S. at 609, 114 S.Ct. at 1799. The Court did not

attempt to limit its language or its rationale for requiring a mens

rea element to "machineguns" and stated in very clear language that

the question before the Court was whether a defendant had to "know

of the particular characteristics that make his weapon a statutory

firearm." Id. (emphasis added). The Court's answer was a clear

"Yes." Id. at 620, 114 S.Ct. at 1804-05.4

4
In holding that the Staples' knowledge requirement applies to
the characteristics of a sawed-off shotgun, the Seventh Circuit
explained:

We agree that a person who knows his shotgun is less than
18 inches long or that his gun fires automatically has no
claim of innocent ownership, just as if he knew he
possessed a hand grenade. Without proof of this

9
 Like the Seventh Circuit, we refuse to interpret section

5861(d) to have different mens rea requirements for the same

element (i.e., possession of a firearm) depending on the type of

firearm. The Supreme Court explicitly held that section 5861(d)

has a "knowledge" requirement; we cannot circumvent this

requirement by holding that some of the "firearms" listed in the

definition section of the statute do not have the same

requirement.5 See Edwards, 90 F.3d at 204 (refusing "to interpret

Staples in such a way as to reach the odd result that the elements

of a § 5861(d) offense vary according to the type of firearm at

issue"). Finally, the Staples Court found section 5861(d)'s "harsh

penalty" of up to ten years' imprisonment to be a "significant

consideration in determining whether the statute should be

construed as dispensing with mens rea." Staples, 511 U.S. at 616,

114 S.Ct. at 1802. This "harsh penalty" applies equally to all of

the weapons listed in the statute and provides additional support

for our refusal to limit the holding in Staples to one sub-category

particular knowledge, however, the defendant may only be aware that
he owns a firearm in the general sense, which is precisely what the
Staples Court held insufficient for a conviction under § 5861(d).

Edwards, 90 F.3d at 204.
5
There is no principled reason to suggest that Congress
intended the eight categories of firearms listed in the definition
section of the statute to have different mens rea elements. The
eight categories of firearms include: (1) a shotgun with a barrel
less than 18 inches, (2) a modified shotgun with barrel less than
18 inches or overall length less than 26 inches, (3) a rifle with
a barrel less than 16 inches, (4) a modified rifle with barrel less
than 16 inches or overall length less than 26 inches, (5) a
machinegun, (6) a silencer, (7) a grenade, and (8) a destructive
device. 26 U.S.C. § 5845.

10
of "firearms" in the statute.

Congress did not make all sawed-off shotguns subject to the

regulation requirement in section 5861(d); whether this is good

public policy is not our decision. See Staples, 511 U.S. at 622,

114 S.Ct. at 1805 (Ginsburg, J., concurring) ("The Nation's

legislators chose to place under a registration requirement only a

very limited class of firearms."). The Court explained in Staples

that "our holding depends critically on our view that if Congress

had intended to make outlaws of gun owners who were wholly ignorant

of the offending characteristics of their weapons, and to subject

them to lengthy prison terms, it would have spoken more clearly to

that effect." 511 U.S. at 620, 114 S.Ct. at 1804. We believe that

this principle must apply equally to the different weapons listed

in the definition section of the statute. Consequently, we refuse

to eliminate the mens rea requirement of section 5861(d) for anyone

caught possessing a sawed-off shotgun in violation of the statute.6

B

We now turn to the question of whether the district court

complied with Rule 11 during its colloquy with Reyna. Neither Rule

6
When a shotgun's length is immediately apparent and
externally visible to anyone observing it, the government's ability
to prove knowledge should not be an onerous task. See Mains, 33
F.3d at 1230 (holding that jury could reasonably infer that
defendant knew his shotgun was less than 18 inches when he
personally assisted in sawing off the shotgun). "Knowledge is a
factual issue, however, which should be left for the jury to
determine. The fact that the length may be obvious or apparent
simply goes to the ease in which the government will be able to
prove the requisite knowledge.... The fact that a shotgun's length
is obvious and apparent is simply a means of proving knowledge, not
a substitute for such proof." Edwards, 90 F.3d at 204-05.

11
11 nor the case law specifies the minimum that the district court

must do to "inform the defendant ... of the nature of the charge."

FED.R.CRIM.P. 11(c); see also United States v. Dayton, 604 F.2d

931, 937-38 (5th Cir.1979) (en banc) (explaining that there is no

simple or mechanical rule). Instead, it has been aptly stated that

the court must have a colloquy with the defendant that would lead

a reasonable person to believe that the defendant understood the

nature of the charge. See United States v. Dewalt, 92 F.3d 1209,

1212 (D.C.Cir.1996); United States v. Frye, 738 F.2d 196, 199-201

(7th Cir.1984). In making this determination, we conduct our

review, "solely on the basis of the record on appeal—principally

the transcript of the plea colloquy hearing but also other portions

of the record, such as any written plea agreement, the transcript

of the sentencing hearing, and the sentence actually imposed."

United States v. Johnson, 1 F.3d 296, 298 (5th Cir.1993) (en banc).

Although the district court's failure to inform Reyna of the

Staples' mens rea requirement—specifically that Reyna must have

known that the overall length of his sawed-off shotgun was less

than 26 inches or that the barrel was less than 18 inches—may have

violated Rule 11, we need not decide the issue because the specific

facts of the plea colloquy and the record demonstrate that the

possible deviation from Rule 11 was harmless error in this case.

To determine whether a Rule 11 error is harmless (i.e., whether it

affects substantial rights), "we focus on whether the defendant's

knowledge and comprehension of the full and correct information

would have been likely to affect his willingness to plead guilty."

12
Johnson, 1 F.3d at 298.

At the rearraignment, the prosecutor read the charge in the

indictment on the record as follows:

[T]he defendant, Miguel Enrique Reyna, knowingly possessed a
firearm, namely a weapon made from a shotgun with an overall
length of less than 26 inches and a barrel of less than 18
inches in length, to wit: a CBC, single shot, .20 gauge
shotgun ... with an overall length of approximately 19
one-half inches and a barrel of approximately 12 one-half
inches in length, not registered to him in the National
Firearms Registration Transfer Record.

The indictment specifically stated that Reyna had to "knowingly

possess[ ]" "a weapon made from a shotgun with an overall length of

less than 26 inches and a barrel of less than 18 inches in length."

The judge made a particular point to ask Reyna if he understood the

indictment; Reyna indicated that he did. A fair reading of the

indictment would have told Reyna that the government had to prove

that Reyna: (1) possessed a weapon made from a shotgun with an

overall length less than 26 inches and a barrel of less than 18

inches, and (2) knew he possessed a weapon made from a shotgun with

an overall length less than 26 inches and a barrel of less than 18

inches. See Staples, 511 U.S. at 623, 114 S.Ct. at 1806 (Ginsburg,

J., concurring) (" "Knowingly possessed' logically means "possessed

and knew that he possessed.' "); see also United States v. Mains,

33 F.3d 1222, 1229-30 (10th Cir.1994) (same).

Reyna argues that his rearraignment is almost "identical" to

one in another sawed-off shotgun case where the D.C. Circuit held

the colloquy to violate Rule 11. See Dewalt, 92 F.3d at 1212-14

(finding that defendant had no reason to know that knowledge of

characteristics of shotgun was element of the crime). Reyna,

13
however, is mistaken. First, unlike the indictment at issue here,

the indictment in Dewalt did not mention that the statute only

covers sawed-off shotguns with an overall length less than 26

inches or barrel less than 18 inches. See id.; see also Mains, 33

F.3d at 1229-30 (finding that jury instruction which stated:

"knowingly possessed a shotgun with a barrel length of less than 18

inches or an overall length less than 26 inches" meant knowledge of

the overall length or barrel of the shotgun) (emphasis added).

Instead, the indictment in Dewalt simply stated that the defendant

must "knowingly receive[ ] and possess[ ] a firearm" and then it

listed the "descriptive details" of the defendant's shotgun.7

Second, the indictment in Dewalt was never read to the defendant

during the colloquy, nor did the judge ask the defendant whether he

had even read the indictment. Finally, the judge in Dewalt did not

even mention that the charge to which the defendant was pleading

concerned possession of a weapon, much less possession of a

sawed-off shotgun with a barrel less than 18 inches long. See

Dewalt, 92 F.3d at 1212 ("The district judge appears to have

approached his solemn task with a somewhat casual attitude.").

In contrast, the district court here asked Reyna many

7
Specifically, the indictment stated that Dewalt "knowingly
received and possessed a firearm, that is, J.C. Higgins sawed-off
shotgun, with an overall length of 291/4 inches and a barrel length
of 161/2 inches, which had not been registered to him." Dewalt, 92
F.3d at 1214. The D.C. Circuit explained that "the indictment
appears first to describe the crime and then to describe the
evidence.... After all, that J.C. Higgins manufactured the shotgun
and that the overall length was 291/4 inches are merely descriptive
details—they do not bring the weapon within the statutory
definition of a "firearm,' and are therefore irrelevant to the
sufficiency of the charge." Id.

14
questions concerning the nature of his offense. When asked whether

he understood the charge of which he was being accused, Reyna told

the judge that he was accused of "possession of an unlawful

firearm" and then specified that it was a "sawed-off shotgun." The

district court also asked Reyna if he understood that by pleading

guilty, he was saying that he "knew that it is against the law to

have this firearm without registering it with the National Firearms

people." (emphasis added). Reyna replied that he did.8 Reyna's

answer to this question supports our opinion that no additional

information "would have been likely to affect [his] willingness to

plead guilty."9 Johnson, 1 F.3d at 298.

We believe that the record in this case demonstrates that the

district court's failure to specifically ask Reyna if he knew that

his 121/2 inch barrel was less than 18 inches or that his 191/2

8
Although Reyna's answer to this question supports his guilty
plea, the question posed by the district court was not a correct
statement of the mens rea required for a violation of section
5861(d). In order to plead guilty, Reyna did not have to know it
was against the law to possess the weapon or even that there was a
registration requirement; instead, he needed only to possess the
weapon and know it was less than 26 inches or that its barrel less
than 18 inches. Moreover, the government does not have to show
knowledge of the law in order to obtain a conviction under section
5861(d). See Staples, 511 U.S. at 622 n. 3, 114 S.Ct. at 1805 n.
3 (Ginsburg, J., concurring) (quoting Cheek v. United States, 498
U.S. 192, 199, 111 S.Ct. 604, 609, 112 L.Ed.2d 617 (1990) ("The
mens rea presumption requires knowledge only of the facts that make
the defendant's conduct illegal, lest it conflict with the related
presumption, "deeply rooted in the American legal system,' that,
ordinarily, "ignorance of the law or a mistake of law is no defense
to criminal prosecution.' ")).
9
Reyna does not claim anywhere in his brief that he did not
actually know the physical characteristics of his weapon. Instead,
Reyna focuses on the failure of the court to explain the Staples'
knowledge requirement as the violation of Rule 11.

15
inch shotgun was less than 26 inches could not "reasonably be

viewed as having been a material factor affecting [Reyna's]

decision to plead guilty." United States v. Bachynsky, 934 F.2d

1349, 1360 (5th Cir.1991) (en banc).

Consequently, because we find that Reyna's replies to the

court's inquiries along with the indictment attest to Reyna's

understanding of the charge against him, the possible deviation

from Rule 11 is harmless error. Accordingly, we reject Reyna's

Rule 11 claim.

C

Reyna also claims that the district court violated the Due

Process Clause of the Fifth Amendment because his guilty plea was

involuntary as a result of his not being informed of the mens rea

element implied by Staples. We disagree. The voluntariness of a

guilty plea is a question of law that we review de novo.10 United

States v. Amaya, 111 F.3d 386, 388 (5th Cir.1997); United States

v. Howard, 991 F.2d 195, 199 (5th Cir.1993).

A guilty plea cannot be voluntary "unless the defendant

received "real notice of the true nature of the charge against him,

the first and most universally recognized requirement of due

10
The government argues that Reyna's failure to raise the claim
in the district court that his guilty plea was involuntary
constitutes a forfeiture of that claim. We disagree. Because we
look to the record and the Rule 11 colloquy to adjudicate the
voluntariness claim, we can do so on direct appeal without an
initial presentation to the district court. See Davis v. Butler,
825 F.2d 892, 893-94 (5th Cir.1987); Bonvillain v. Blackburn, 780
F.2d 1248, 1249-51 (5th Cir.1986); cf. Still, 102 F.3d at 122 n.
9 (holding that Rule 11 claim is not waived even when not presented
to the district court).

16
process.' " Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253,

2257-58, 49 L.Ed.2d 108 (1976) (quoting Smith v. O'Grady, 312 U.S.

329, 334, 61 S.Ct. 572, 574, 85 L.Ed. 859 (1941)). This court has

consistently held, however, that "a guilty plea would be upheld as

voluntary even if the trial judge failed to explain the offense if

the record showed that the defendant understood the charge and its

consequences." Bonvillain v. Blackburn, 780 F.2d 1248, 1250 (5th

Cir.1986); see also Davis v. Butler, 825 F.2d 892, 893 (5th

Cir.1987); Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th Cir.1985).

Looking at the Rule 11 colloquy, the indictment, and the

record in this case (in light of our harmless error discussion), we

are convinced that Reyna understood the charge against him.

III

Reyna also appeals his sentence on the ground that the

district court erred in giving him a two-point sentencing

enhancement under U.S.S.G. § 3C1.2 for reckless endangerment during

flight. We disagree. We review the district court's factual

findings for clear error, while we review the court's application

of the Sentencing Guidelines de novo. United States v. Peterson,

101 F.3d 375, 384 (5th Cir.1996), cert. denied, --- U.S. ----, 117

S.Ct. 1346, 137 L.Ed.2d 504 (1997).

In the case at hand, the facts in the PSR that supported a

two-point enhancement for reckless endangerment during flight were

that Reyna "initiated a high speed chase for several miles" and in

his "attempt to avoid or flee from arrest, he attempted to hit one

of the patrol units as he was driving in the middle of the road and

17
caused oncoming traffic to get off the roadway." At the sentencing

hearing, Reyna's attorney objected to the two-point enhancement and

asked that the contrary facts set out in Reyna's written objection

to the PSR be accepted as a proffer. While the court accepted the

proffer of facts as evidence, Reyna's attorney did not ask for an

evidentiary hearing nor the opportunity to put Reyna on the stand.

The court then specifically denied Reyna's objection to the

two-point enhancement. At the end of the sentencing hearing, the

district court "adopt[ed] all justifications which are included in

[the PSR]" as justifications for Reyna's sentence.

Reyna now claims that the government failed to meet its

burden of proof on the factual allegations surrounding his flight

and reckless endangerment.11 We have clearly acknowledged, however,

that the district court may consider the PSR in making factual

determinations. See United States v. Fitzgerald, 89 F.3d 218, 223

(5th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 446, 136 L.Ed.2d

342 (1996). Here, the district court considered the facts set out

in the PSR as well as the contrary facts proffered by Reyna, and

found that the PSR was more reliable. See id. (holding that

presentence report generally bears enough indicia of reliability to

be considered as evidence). Although it is true that "[w]hen a

11
Reyna correctly asserts that the ultimate burden of
persuasion rested on the government once he produced specific
rebuttal evidence that tended to show that the information in the
PSR was untrue. See United States v. Hooten, 942 F.2d 878, 881-82
(5th Cir.1991); United States v. Aguilera-Zapata, 901 F.2d 1209,
1215 (5th Cir.1990); United States v. Logan, 54 F.3d 452, 455 (8th
Cir.1995); United States v. Rivera, 6 F.3d 431, 444 (7th
Cir.1993).

18
defendant objects to particular findings in the presentence report,

the sentencing court must resolve the specifically disputed issues

of fact if it intends to use those facts as a basis for its

sentence," see United States v. Smith, 13 F.3d 860, 867 (5th

Cir.1994), here the district court did so. The district court's

factual finding that Reyna recklessly endangered life during his

flight was not clearly erroneous.

IV

In summary, we AFFIRM Reyna's conviction for violating 26

U.S.C. § 5861(d), and AFFIRM his sentence.

19