Case: 10-50897 Document: 00511503996 Page: 1 Date Filed: 06/09/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 9, 2011
No. 10-50897
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CARLOS MARQUEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:09-CR-3336-1
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Carlos Marquez pleaded guilty to receipt of material involving the sexual
exploitation of children and was sentenced to 168 months of imprisonment, five
years of supervised release, and a $1,000 fine. Marquez agreed in a written plea
agreement to waive his right to appeal or collaterally attack his prosecution and
sentence, except for claims of ineffective assistance of counsel or prosecutorial
misconduct.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-50897 Document: 00511503996 Page: 2 Date Filed: 06/09/2011
No. 10-50897
Marquez argues on appeal that his guilty plea was not made knowingly
and voluntarily because the district court committed plain error by misinforming
him that he faced a term of supervised release of three to five years, rather than
five years to life, and by failing to inform him of the meaning and effect of
supervised release when it did not advise him about the term of imprisonment
that he faced upon the possible revocation of his supervised release. He did not
object to these violations of Federal Rule of Criminal Procedure 11 in the district
court, and thus his arguments are reviewed for plain error. See United States
v. Vonn, 535 U.S. 55, 59 (2002). Because Rule 11 does not require the district
court to inform a defendant of the effect of supervised release and because
Marquez has not otherwise demonstrated a reasonable probability that, but for
any error by the district court, he would not have pleaded guilty, he has not
shown that the district court committed plain error or that his plea was not
made knowingly and voluntarily. United States v. Dominguez Benitez, 542 U.S.
74, 83 (2004); Vonn, 535 U.S. at 59.
Marquez also argues that his sentence is substantively unreasonable for
various reasons. He contends that this argument is not precluded by his appeal
waiver because he was not properly questioned and admonished about the
appeal waiver, and thus the appeal waiver was not informed and voluntary. The
Government argues that Marquez’s arguments are precluded by the appeal
waiver, which Marquez entered knowingly and voluntarily.
The record indicates that the district court adequately explained the
appeal waiver to Marquez and adequately questioned Marquez about the waiver,
and thus Marquez knew that he had the right to appeal his sentence and that
he was giving up that right. See United States v. Portillo, 18 F.3d 290, 292 (5th
Cir. 1994). Accordingly, Marquez has not demonstrated that his appeal waiver
was not informed and voluntary. See United States v. McKinney, 406 F.3d 744,
746 (5th Cir. 2005).
AFFIRMED.
2