IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40195
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN BAEZA-MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-98-CR-517-1
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August 27, 1999
Before KING, Chief Judge, and JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
The Federal Public Defender (“FPD”), on behalf of Martin
Baeza-Martinez (“Baeza”), challenges Baeza’s guilty-plea
conviction for illegal reentry of a deported alien, 8 U.S.C.
§ 1326. The FPD contends that the district court erred by
failing to comply with Fed. R. Crim. P. 11(c)(1) during
rearraignment and that the failure requires that his conviction
be reversed.
*
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that this opinion should not be published and is not precedent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. 99-40195
-2-
The Government responds that the FPD has waived the argument
by failing to raise it before the district court or in any
similar case. As the Government concedes, however, claims of
Rule 11 violations may raised for the first time on appeal. See
United States v. Suarez, 155 F.3d 521, 524 (5th Cir. 1998)(Rule
11 challenge may be raised for the first time on appeal and is
reviewed for harmless error); United States v. Reyna, 130 F.3d
104, 107 & n.2 (5th Cir. 1997)(although the defendant did not
present his claim of noncompliance with Rule 11 in the district
court, it is not waived), cert. denied, 118 S. Ct. 1328 (1998).
Nevertheless, this appeal is frivolous. In reviewing
whether the district court complied with the dictates of Rule 11,
this court “conduct[s] a straightforward, 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?” United
States v. Johnson, 1 F.3d 296, 298 (5th Cir. 1993) (en banc).
Although he acknowledges his argument is subject to harmless-
error review, counsel makes no argument that Baeza’s substantial
rights were affected; accordingly, there is no reversible error.
See id.
The appeal is without arguable merit and is therefore
frivolous. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983);
5th Cir. R. 42.2. Accordingly, it is DISMISSED. The
Government’s motion to consolidate is DENIED.
APPEAL DISMISSED; MOTION DENIED.