IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-10976
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN CUEVAS-ANDRADE,
Defendant-Appellant.
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Appeal from the United States District Court for the
Northern District of Texas
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November 3, 2000
Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:
Juan Cuevas-Andrade appeals his conviction and sentence for
illegally reentering the United States following deportation. He
contends, first, that the district court’s numerous violations of
FED. R. CRIM. P. 11 require us to remand the case for a new plea
hearing; and, second, that the district court improperly enhanced
his sentence on the basis of a prior conviction for carrying a
firearm during a drug-trafficking crime. We hold that under the
circumstances of this case, the district court’s violations of Rule
11 constitute harmless error because they did not materially affect
Cuevas-Andrade’s decision to plead guilty. We also hold that
Cuevas-Andrade’s second issue is unreviewable because, as a part of
his plea agreement, he voluntarily and intelligently waived his
right to challenge his sentence. We thus affirm Cuevas-Andrade’s
conviction and sentence.
I
Juan Cuevas-Andrade, a citizen of Mexico, was deported from
the United States in August 1996. Cuevas-Andrade returned to the
United States and was later found and arrested in Texas in January
1999. He was charged with a violation of 8 U.S.C. § 1326
(illegally reentering the United States following deportation) and,
pursuant to a written plea agreement with the government, pled
guilty to the indictment in May 1999. The United States District
Court for the Northern District of Texas (Dallas Division)
sentenced Cuevas-Andrade to 46 months’ imprisonment, three years’
supervised release, and a special assessment of $100.
Cuevas-Andrade now appeals, claiming that his guilty plea was
improperly entered and that his sentence was improperly enhanced.
II
Cuevas-Andrade raises two principal issues on appeal. First,
he argues that the district court violated FED. R. CRIM. P. 11 by
failing to inform him of the nature of the charge, the maximum
possible penalty, the effect of supervised release, the waiver of
his right to a jury trial, and the possibility that his answers
2
could result in a prosecution for perjury. Because of these
alleged Rule 11 violations, Cuevas-Andrade concludes that we must
vacate his conviction and remand the case for a new plea hearing.
The government concedes that the plea colloquy was deficient, but
it argues that the court’s Rule 11 errors constitute harmless
error.
Second, Cuevas-Andrade argues that the district court
improperly enhanced his sentence. According to Cuevas-Andrade, his
prior conviction for possession of a firearm during a controlled
substance offense should not have been considered an “aggravated
felony.” The government contends that this issue is foreclosed by
the waiver of appeal provision in Cuevas-Andrade’s plea agreement.1
1
After the Supreme Court decided Apprendi v. New Jersey, 120
S.Ct. 2348, 147 L.Ed.2d 435 (2000), Cuevas-Andrade raised a third
issue on appeal. He now argues that his prior felony conviction
should have been alleged in the indictment. But, as Cuevas-Andrade
concedes, his argument is directly contrary to the holding of
Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct.
1219, 1222, 140 L.Ed.2d 350 (1998) (the criminal penalty provision
of 8 U.S.C. § 1326(b)(2) “simply authorizes a court to increase the
sentence for a recidivist [and] does not define a separate crime.”)
Cuevas-Andrade suggests, however, that Almendarez-Torres was called
into question by Apprendi. See Apprendi, 120 S.Ct. at 2361-62; id.
at 2379 (Thomas, J., concurring); see also United States v. Powell,
109 F.Supp.2d 381, 382-84 (E.D. Pa. 2000). Cuevas-Andrade has
raised the issue here for the sole purpose of preserving the
question for further review by the Supreme Court.
3
III
A
Federal Rule of Criminal Procedure 11 requires federal
district courts to “address the defendant personally in open court”
before accepting the defendant’s plea and to inform the defendant
of, and determine that he understands, certain facts relating to
the voluntariness and intelligence of his plea. Cuevas-Andrade
argues that the district court committed numerous Rule 11 errors by
failing to explain (a) the nature of the charge, (b) the maximum
possible penalty, (c) the effect of a supervised release term, (d)
the role of sentencing guidelines and judicial discretion in
sentencing, (e) waiver of his right to a jury trial and his rights
attendant to trial, such as the right to confront witnesses, and
(f) the plea agreement provision regarding the waiver of the right
to appeal the sentence. See FED. R. CRIM. P. 11(c)(1)-(5).
Furthermore, Cuevas-Andrade argues, the court failed to determine
that the plea was voluntary and not the result of force or threats.
See FED. R. CRIM. P. 11(d).
We review de novo whether a district court has complied with
a Federal Rule of Criminal Procedure. United States v. Scott, 987
F.2d 261, 264 (5th Cir. 1993). If the district court failed to
comply with Rule 11, we then ask whether the court’s errors were
harmless under Rule 11(h): “Any variance from the procedures
4
required by this rule which does not affect substantial rights
shall be disregarded.” FED. R. CRIM. P. 11(h). We have explained
that a defendant’s substantial rights are affected if the district
court’s Rule 11 errors “may reasonably be viewed as . . . a
material factor affecting [the defendant’s] decision to plead
guilty.” United States v. Bachynsky, 934 F.2d 1349, 1360 (5th Cir.
1991) (en banc); see also United States v. Johnson, 1 F.3d 296, 302
(5th Cir. 1993) (en banc) (a defendant’s substantial rights are
affected if his “knowledge and comprehension of the full and
correct information would have been likely to affect his
willingness to plead guilty”).2 We now turn to each of the alleged
Rule 11 errors.
First, Cuevas-Andrade claims that the district court failed to
inform him of the nature of the charge against him. We have held
that in cases involving simple charges, “a reading of the
2
The government argues that harmless error analysis is
inappropriate in this case and that Cuevas-Andrade’s Rule 11
challenges should be reviewed for plain error because he failed to
raise his objections in the district court. This argument
contradicts our holdings that a defendant may assert Rule 11
violations on appeal regardless of whether he raised the issue in
the district court and that such claims are reviewed under harmless
error analysis rather than for plain error. See United States v.
Suarez, 155 F.3d 521, 524 (5th Cir. 1998); United States v.
Glinsey, 209 F.3d 386, 394 n.8 (5th Cir. 2000).
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indictment, followed by an opportunity given the defendant to ask
questions about it, will usually suffice” to inform the defendant
of the nature of the charge. United States v. Dayton, 604 F.2d
931, 938 (5th Cir. 1979) (en banc). In this case, it is undisputed
that the prosecutor, at the court’s request, read the indictment in
open court. The district court failed, however, to provide
Cuevas-Andrade with the opportunity to ask questions about the
charge. This variance from Rule 11 was harmless. The signed factual
resume that accompanied his plea agreement listed the elements of
the offense as well as the factual basis for his plea. At the plea
hearing, Cuevas-Andrade’s counsel confirmed that he had reviewed
the plea agreement and factual resume with his client and that
Cuevas-Andrade appeared to understand them. Under these
circumstances, the district court’s variance from Rule 11 is
harmless error because it cannot reasonably be viewed as a material
factor affecting Cuevas-Andrade’s decision to plead guilty.
Second, Cuevas-Andrade contends that the district court failed
to explain the maximum possible penalty provided by law, including
the effect of a supervised release term. He admits that the
prosecutor, at the court’s request, summarized the plea agreement
and stated, “The punishment is a period not to exceed twenty years,
fine not to exceed $125,000, supervised release of less than two
years [sic], not more than three years, and mandatory special
6
assessment of $100.” The court strayed from Rule 11 by not
addressing the defendant personally, by not asking follow-up
questions after the prosecutor had recited the possible penalties,
and by not explaining the effect of a supervised release term.
These errors are harmless, however. The penalties that
Cuevas-Andrade faced, including the supervised release term, were
fully and accurately explained in the signed plea agreement.
Furthermore, the error was harmless because the maximum term of
incarceration under the actual sentence of imprisonment and
supervised release is less than the maximum term of incarceration
allowed by law. The maximum possible term of incarceration was
twenty years, as Cuevas-Andrade knew. In fact, he was sentenced to
only forty-six months’ imprisonment, thirty-six months’ supervised
release, and two years’ imprisonment upon revocation of his
supervised release (under 18 U.S.C. § 3583(e)(3)). Thus, his
aggregate period of incarceration is less than six years, and the
total period of time between his first day and last day in prison
(this is what we have called his “worst-case scenario”) is less
than nine years. See United States v. Hekimain, 975 F.2d 1098,
1101-03 (5th Cir. 1992). Because Cuevas-Andrade understood that he
could have received a maximum prison term of twenty years, and
because that term exceeds both his maximum aggregate period of
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incarceration and his “worst case scenario,” the district court’s
noncompliance with Rule 11 was harmless error.
Third, Cuevas-Andrade alleges that the court failed to explain
that it was required to consider sentencing guidelines but was also
able to depart from those guidelines in some circumstances. The
court failed to inform Cuevas-Andrade of these facts. But, again,
these omissions are harmless because Cuevas-Andrade’s plea
agreement contained a full explanation of sentencing guidelines
and, furthermore, the district court did not depart upward from the
guidelines.
Fourth, Cuevas-Andrade claims that the court failed to inform
him that a guilty plea effected a waiver of various rights,
including his rights to plead not guilty, to be tried by a jury, to
confront witnesses at trial, to have assistance of counsel, and
against compelled self-incrimination. Although not discussed at
the plea hearing, this information was contained in the plea
agreement, which Cuevas-Andrade signed and apparently understood.
Furthermore, under our harmless error analysis, we must give some
consideration to the fact that the defendant “has offered no
proof--not even an allegation--that the [Rule 11] information
omitted from his plea hearing would have altered his plea.” United
States v. Vasquez-Bernal, 197 F.3d 169, 171 (5th Cir. 1999). Here,
Cuevas-Andrade has not alleged that this Rule 11 error (or any of
8
the Rule 11 errors, for that matter) materially affected his
decision to plead guilty.
Fifth, Cuevas-Andrade alleges that the court failed to warn
him that false answers provided at the plea hearing would subject
him to prosecution for perjury or false statement. The court
warned him only that his responses at the hearing had to “be given
truthfully and under oath.” To the extent that the court failed to
comply with this requirement, we find its errors harmless because
Cuevas-Andrade does not even allege that the court’s failure to
warn him of the potential for a perjury prosecution affected his
substantial rights, influenced his decision to plead guilty, or
raises doubts about the voluntariness or intelligence of his plea.
See United States v. Henry, 113 F.3d 37, 42 (5th Cir. 1997).
Sixth, Cuevas-Andrade alleges that the court failed to inform
him that, under the terms of the plea agreement, he would waive his
right to appeal his sentence. It is true that Rule 11 now provides
that the court must determine that the defendant understands “the
terms of any provision in a plea agreement waiving the right to
appeal or to collaterally attack the sentence.” FED. R. CRIM. P.
11(c)(6). Because this subsection did not become effective until
December 1, 1999, it does not apply to the plea hearing in this
case, which took place on May 13, 1999. See United States v.
Robinson, 187 F.3d 516, 518 n.2 (5th Cir. 1999).
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Seventh, Cuevas-Andrade argues that the court failed to
determine that the plea was voluntary and not the result of force
or threats. The court did, in fact, fail to personally address the
defendant and determine whether his plea was “freely and
voluntarily made.” FED. R. CRIM. P. 11(d). But this error, too, was
harmless for several reasons. The signed plea agreement provides
unequivocally that the plea was voluntary and not the result of
force or threats. The court asked Cuevas-Andrade’s attorney
whether he was satisfied that his client’s guilty plea was
voluntary. And on appeal, Cuevas-Andrade does not allege that his
plea was involuntary. Under these circumstances, this Rule 11
error was harmless.
Finally, Cuevas-Andrade argues that a plea colloquy “cannot
sustain limitless ‘harmless’ error” and that numerous Rule 11
omissions, taken together, may “transform otherwise ‘harmless’
error into reversible error sufficient to compel remand for
repleading.” We simply find no support in our case law for this
proposition. Instead, the rule is that every alleged Rule 11
violation must be tested under the harmless error standard of Rule
11(h), and we may not create reversible error out of a series of
harmless errors unless the cumulative effect would sustain a
10
conclusion that the voluntariness of his plea was materially
affected. Here, it plainly will not sustain such a conclusion.3
B
The district court enhanced Cuevas-Andrade’s illegal reentry
sentence on the grounds that he had a prior conviction under 18
U.S.C. § 924(c)(1) for using and carrying a firearm during a drug-
trafficking crime. Cuevas-Andrade argues on appeal that the court
erred in viewing this conviction as an “aggravated felony” that
warranted a sixteen-level increase under U.S.S.G. § 2L1.2(b)(1)(A).
The government argues that this question is unreviewable because
Cuevas-Andrade waived his right to appeal his sentence.
Cuevas-Andrade’s plea agreement provides that he waives the
right to appeal his sentence on any ground, except for punishment
in excess of the statutory maximum, an upward departure from the
3
Notwithstanding that all errors at the plea colloquy in this
case are harmless, we strongly emphasize that district courts
should be vigilant in performing their duties under Rule 11. All
the district court must do is “follow the script” to assure that
the plea is voluntary and that the defendant’s substantial rights
have been safeguarded. Strict compliance with Rule 11 also
conserves judicial resources by precluding appeals such as this
one, where the technical violations do not materially affect the
defendant’s decision to plead guilty.
Furthermore, we must observe that if either the United States
Attorney or the Federal Public Defender believes the colloquy is
inadequate under Rule 11, as officers of the court they have “both
an obligation and an interest in insuring that a guilty plea
proceeding complies with all constitutional and statutory
requirements,” United States v. Echegollen-Barrueta, 195 F.3d 786,
790 n.2 (5th Cir. 1999), and accordingly should bring any failure
in compliance with Rule 11 to the attention of the court.
11
guidelines, or arithmetical errors in the guideline calculation.
Because Cuevas-Andrade’s sentencing issue does not fall under any
of these three exceptions, the issue may not be raised on appeal
unless the waiver is somehow ineffective.
In order to be effective, a waiver of the right to appeal must
be informed and voluntary. United States v. Melancon, 972 F.2d
566, 567 (5th Cir. 1992). At the plea hearing, the U.S. Attorney
summarized the waiver provision, and Cuevas-Andrade’s attorney
informed the court that Cuevas-Andrade had reviewed the entire plea
agreement and appeared to understand it. On appeal, Cuevas-Andrade
does not challenge the intelligence or voluntariness of the waiver.
His only argument why this waiver does not apply here is that the
court failed to comply with Rule 11(c)(6), which requires the court
to verify that a defendant understands the waiver provisions in a
plea agreement. As we pointed out above, however, this provision
is inapplicable because it did not become effective until after
Cuevas-Andrade was sentenced. Absent any other indication that the
waiver provision was involuntary, we must enforce it.
Cuevas-Andrade’s challenge to his sentence is therefore
unreviewable.
IV
We conclude that all of the alleged Rule 11 violations were,
at most, harmless errors. The record indicates that Cuevas-Andrade
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knew and understood the nature of the charge, the maximum possible
penalty, the sentencing process, and his right to a trial. In most
instances, these facts were thoroughly covered in the plea
agreement, which Cuevas-Andrade signed and understood. Moreover,
Cuevas-Andrade does not allege how these Rule 11 errors may have
materially affected his decision to enter a guilty plea. We also
conclude that Cuevas-Andrade voluntarily waived his right to appeal
his sentence, and for that reason, we do not review the question
whether the district court properly enhanced Cuevas-Andrade’s
sentence. Cuevas-Andrade’s conviction and sentence are
A F F I R M E D.
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