IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40409
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FELIPE DE JESUS SALAZAR-OLIVARES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
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June 21, 1999
Before JONES, SMITH, and DUHÉ, Circuit Judges.
EDITH H. JONES, Circuit Judges:
Felipe de Jesus Salazar-Olivares appeals his guilty-plea
conviction for illegal reentry into the United States after
having previously been deported. He was sentenced to 46 months’
imprisonment and three months supervised release. Appellants’
principal complaints arise out of the district court’s conduct of
a simultaneous guilty plea hearing for several, similarly-charged
defendants. This procedure was adopted to increase the court’s
efficiency while under inundation by border-related criminal
cases. No counsel or defendant contemporaneously objected to the
court’s offer to hold the group hearing in these cases or to its
practice of admonishing the defendants as a group and reciting
into the record their expressed understanding of the court’s
statements and inquiries. On the facts before us, the appeal is
frivolous.
Appellant argues that his conviction should be vacated
because the transcript of the group guilty plea does not contain
his specific responses to several of the Fed. R. Crim. P. 11
questions posed by the district court and that this court cannot
conduct a meaningful review of his guilty plea. He contends that
the error is not harmless because he is being denied his right to
an appeal.
Rule 11 requires the district court to follow certain
procedures in determining whether United States v. Johnson,
1 F.3d 286, 298-300 (5th Cir. 1993) (en banc). Rule 11 ensures
that the district court addresses three core concerns: “(1)
whether the guilty plea was coerced; (2) whether the defendant
understands the nature of the charges; and (3) whether the
defendant understands the consequences of his plea.” Johnson,
1 F.3d at 300. There is no right to appeal from a guilty plea
in the absence of a jurisdictional defect. Barrientos v. United
States, 668 F.2d 838, 842 (5th Cir. 1982). Appeal is limited to
a review of Rule 11 errors. Id. At 843.
Although the district court asked many of the Rule 11
questions to the defendants as a group and the record does not
identify individual responses to some of the Rule 11 inquiries,
the transcript of Salazar-Olivares’s guilty plea contains
questions specifically directed toward him regarding the nature
of the charge against him, his guilt on the charge, his age, and
the nature of his plea agreement. Salazar-Olivares answered
appropriately. Salazar-Olivares does not argue that the district
court varied from the required Rule 11 procedures or that he did
not understand any of the rights he was waiving. Moreover, his
counsel was silent when the court asked if anyone had objections
to its procedure.
Under these circumstances, Salazar-Olivares waived any error
he might have asserted about the district court’s Rule 11 group
guilty plea procedure. United States v. Calverley, 37 F.3d 160,
162 (5th Cir. 1994) (en banc) (a waived error “results in no
error”). In any event, he cannot even describe how the court’s
procedure, as utilized in this case, denied him the opportunity
to enter a knowing and voluntary guilty plea.
We can envision dangers arising from a court’s failure to
attend to details in a group guilty plea setting, but there are
two sure safeguards against error: careful judicial practice and
vigilant counsel. As Salazar-Olivares raises this issue, it is
frivolous.
The other issues raised by Salazar-Olivares are also
frivolous.* The Federal Public Defender, whose office filed this
brief, is cautioned that it may be sanctioned for further
frivolous filings.
DISMISSED AS FRIVOLOUS.
*
Salazar-Olivares’s two sentencing issues are frivolous. He
complains about the law in this circuit which does not require
proof beyond a reasonable doubt of an aggravated felony used for
a sentencing enhancement, but the district court found that his
previous aggravated-felony conviction had been proved to that
standard. He challenges this circuit’s rule that the facts
stated in a PSR are accepted as true unless rebutted by the
defendant’s evidence, but on such findings played a role in his
sentencing.