IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40797
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS MOLINA-GIRON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 98-CR-197-1
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April 15, 1999
Before JONES, SMITH, and DUHÉ, Circuit Judges.
PER CURIAM:*
Jose Luis Molina-Giron appeals his guilty-plea conviction
for being found unlawfully in the United States after having been
previously convicted of an aggravated felony and deported in
violation of 8 U.S.C. § 1326(b)(2). He argues that his guilty
plea was not intelligently and voluntarily given because the
district court did not advise him that the United States
Sentencing Guidelines were applicable and that the district court
had the authority to depart above or below the Guideline range;
*
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that this opinion should not be published and is not precedent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.
No. 98-40797
-2-
he argues that these variances from the procedures set forth in
Fed. R. Crim. P. 11 affected his substantial rights. While the
district court failed to advise Molina-Giron of the applicability
of the Guidelines and its authority to depart from the
Guidelines, Molina-Giron has not shown that the district court’s
variance from Rule 11 was “a material factor affecting [his]
decision to plead guilty.” See United States v. Johnson, 1 F.3d
296, 302 (5th Cir. 1993)(en banc).
AFFIRMED.