UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40553
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RODOLFO VASQUEZ-BERNAL,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(B-98-CR-40-1)
August 5, 1999
Before JONES and WIENER, Circuit Judges, and WALTER,* District
Judge.
PER CURIAM:**
On January 28, 1998, Rodolfo Vasquez-Bernal pleaded
guilty to an indictment charging him with illegal entry into the
United States subsequent to deportation. See 8 U.S.C. § 1326.
Vasquez-Bernal pleaded to the charged offense without the benefit
of a plea agreement. On appeal, Vasquez-Bernal does not challenge
the merits of the underlying conviction. Instead, he argues that
the district court failed to advise him of the range of punishment
applicable to his crime under § 1326. Vasquez-Bernal maintains
*
District Judge of the Western District of Louisiana, sitting by
designation.
**
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opinion should not be published and is not precedent except under the limited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.
that this failure violated Fed. R. Crim. P. 11 and mandates a
reversal of his conviction. The Federal Public Defender ought to
have better things to do. Finding the district court’s error
harmless, and this appeal frivolous, we dismiss.
To ensure that a guilty plea is “voluntary, accurate and
properly recorded,” Rule 11 establishes the procedure that a
district court must follow when accepting a plea. See United
States v. Crow, 164 F.3d 229, 233 (5th Cir.) (citing United States
v. Myers, 150 F.3d 459, 464 n.8 (5th Cir. 1998)), cert. denied, ___
U.S. ___, 119 S. Ct. 2051 (1999). Under Rule 11, a district court
must inform the defendant of the nature of the charge, the
mandatory minimum penalty, the maximum possible penalty, any
special parole or supervised release term, and any applicable
sentencing guidelines. See Fed. R. Crim. P. 11(c)(1).
If a defendant challenges the Rule 11 procedures employed
by the district court during a plea colloquy, this court reviews
the record for harmless error. See United States v. Suarez, 155
F.3d 521, 524 (5th Cir. 1998). First, the court must determine
whether the district court varied from Rule 11’s dictates. See id.
If the district court has failed to comply with Rule 11, the court
then examines whether the variance “affect[ed] the substantial
rights of the defendant.” Id.
The district court received Vasquez-Bernal’s plea during
the course of a simultaneous guilty plea hearing for ten other,
similarly-charged defendants. No defendant objected to the
procedure employed by the district court, and Vasquez-Bernal’s
2
counsel did not object to the entry of his client’s guilty plea.
The district court, however, did not specifically comply with Rule
11 when it failed to personally inform Vasquez-Bernal of the
punishment range he faced as a consequence of his crime.
That the district court failed to follow Rule 11’s strict
requirements, only completes half of our query. We must now
determine whether this error affected Vasquez-Bernal’s substantial
rights. Though the district court failed to inform Vasquez-Bernal
of the punishment range for the charged crime, the presentence
report specifically detailed the punishment range applicable to
Vasquez-Bernal’s crime. See United States v. Herndon, 7 F.3d 55,
57 (5th Cir. 1993) (examining presentence report for evidence that
plea was voluntary and made with full awareness of plea’s
consequences). Vasquez-Bernal was sentenced to 46 months in
custody,1 3 years supervised release, and a $100 special
assessment. This sentence was at the bottom of the guideline range
for his offense and criminal history, including a three-level
reduction for acceptance of responsibility under U.S. Sentencing
Guidelines Manual § 3E1.1(b). As the government points out, a
reversal would necessitate a new plea hearing or trial -- the
outcome of which would likely cause Vasquez-Bernal’s sentence to
increase based on the loss of the reduction under U.S. Sentencing
Guidelines Manual § 3E1.1(b).
1
Vasquez-Bernal’s sentence is well below the 20-year maximum period
of incarceration potentially applicable to violations of § 1326.
3
In light of the circumstances surrounding this plea
hearing, it would be absurd to find that Vasquez-Bernal was unaware
of the consequences of his crime or that this alleged lack of
knowledge actually affected his decision to plead guilty to the
illegal entry charge. Vasquez-Bernal does not argue that he would
not have pled guilty had he been personally informed of the
punishment range for his crime; he merely argues that the court’s
error mandates a reversal of his conviction. As this court
explained in Suarez, “[a] substantial right has been violated if
‘the defendant’s knowledge and comprehension of the full and
correct information would have been likely to affect his
willingness to plead guilty.’” 155 F.3d at 524 (quoting United
States v. Johnson, 1 F.3d 296, 302 (5th Cir 1993) (en banc)).
Vasquez-Bernal has offered no proof -- not even an allegation --
that the punishment information omitted from his plea hearing would
have altered his plea to the illegal entry charge. See United
States v. Williams, 120 F.3d 575, 577-78 (5th Cir. 1997), cert.
denied, --- U.S. ---, 118 S. Ct. 722 (1998). Lacking such proof
and finding no rational basis under the circumstances to conclude
that Vasquez-Bernal would have pled differently had he been
properly advised of the punishment range for his offense, we find
no merit in appellant’s argument.
DISMISSED AS FRIVOLOUS.
4