UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-20060
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO MENDOZA-MORA, also known as Francisco Mendoza, also
known as Francisco Mora, also known as Santiago Romero,
Defendant-Appellant.
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Appeal from the United States District Court,
for the Southern District of Texas
(4:97-CR-218)
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September 16, 1998
Before KING, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Francisco Mendoza-Mora (“Mendoza”), a previously deported
Mexican national, challenges his guilty-plea conviction for illegal
reentry into the United States, in violation of 8 U.S.C. § 1326.
He contends that the district court’s failure to comply with FED.
R. CRIM. P. 11(d) (inquiry whether plea product of force or threats)
requires that his conviction be vacated.
*
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this opinion should not be published and is not precedent except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.
Violations of Rule 11 are reviewed for harmless error. FED.
R. CRIM. P. 11(h); United States v. Johnson, 1 F.3d 296, 301-03
(5th Cir. 1993) (en banc). We do so even where, as here, no
objection was raised in the district court. See United States v.
Reyna, 130 F.3d 104, 107 n. 2 (5th Cir. 1997), cert. denied, 118 S.
Ct. 1328 (1998).
It is undisputed that the district court failed to inquire
whether Mendoza’s plea was the product of force or threats, as Rule
11(d) requires. However, Johnson requires for reversal that a Rule
11 violation be “a material factor affecting [defendant]’s decision
to plead guilty”. 1 F.3d at 302 (internal quotation marks and
citation omitted). Mendoza does not state that his plea was the
product of threats or force or that he would have pled differently
had a proper Rule 11 colloquy taken place. Absent even such
minimal counter-assertion now, Mendoza’s statements at the plea
hearing that he wanted to plead guilty; that there existed no
“promise ... of any kind” inducing the plea; and that the
underlying facts of the indictment were true, compel the conclusion
that, had Rule 11(d) been followed, Mendoza would still have pled
guilty. Therefore, under Johnson, the district court’s variance
from Rule 11 procedures is harmless error.
AFFIRMED
2