UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 00-50548
Summary Calendar
Civil Docket # SA-00-CR-74-1-EP
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL AMAYA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
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March 6, 2001
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
Appellant Amaya, an illegal alien, was caught in the
middle of his attempt to hijack a truck at gunpoint. During the
middle of this episode, the truck’s owner was shot in the chest.
Amaya was charged by federal authorities as being an illegal alien
in possession of a firearm, in violation of 18 U.S.C. §
922(g)(5)(A). After pleading guilty without an agreement with the
*
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opinion should not be published and is not precedent except under the limited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.
government, Amaya was sentenced to 97 months imprisonment, plus
three years supervised release and a fine. Still represented by
the federal public defender, he now appeals, contending that the
Rule 11 colloquy was insufficient and that as a result his plea
should be vacated and the case remanded for another plea
proceeding. Finding no reversible error, we affirm.
The district court, no doubt inadvertently, omitted to
inform Amaya at the plea hearing that his sentence would be
determined according to the U.S. Sentencing Guidelines, but that
the court could depart from them in some circumstances. He also
failed to admonish Amaya of the effect of supervised release, i.e.,
that if Amaya violated its terms, he could be incarcerated for 24
months in addition to the maximum imprisonment sentence. The
latter error resulted in a one-month discrepancy between the 10-
year maximum statutory term to which Amaya knew he was exposed, and
the cumulative term (10 years, one month) he might receive if he
served 97 months, then commenced supervised release and violated
it, resulting in two years more incarceration.
Under the circumstances of this case, we find that while
the court’s omissions technically violated Rule 11, they do not
result in reversible error.1 First, Amaya’s sentence was
1
In a recent en banc case, this court implied that appellate review
is for plain error only when a defendant has failed to raise a Rule 11 challenge
in the trial court. United States v. Marek, ____ F.3d ____ (5th Cir. Jan. 4,
2001), slip op. at 1455, 2001 WL at 10561, at *3. Other cases have disagreed on
whether to apply the plain error or harmless error standards. Compare U.S. v.
Johnson, 1 F.3d 296, 298 (5th Cir. 1993) (en banc) (harmless error), with United
States v. Ulloa, 94 F.3d 949, 955 (5th Cir. 1996). Even if we apply the less
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considerably shorter than the maximum statutory term. It is hard
to infer that a simple admonishment about the existence of the
Sentencing Guidelines would have influenced him one way or another
about the guilty plea. Second, appellant does not claim on appeal
in regard to either of the court’s errors that he would have pled
differently or insisted on going to trial if he had known the
Sentencing Guidelines provide the range or if he had known about
the potential effect of a revocation of supervised release. We
cannot draw an inference of reversible error when even the
defendant only speculates about harm and has not flatly asserted
that these omissions affected his decision to plead guilty. See
United States v. Williams, 120 F.3d 575, 578 (5th Cir. 1997)
(harmless error where the defendant did not claim he would have
pleaded differently absent the error.) Third, the district court
did not fail to mention the term of supervised release, but only
its effect, which gives rise at most to the question whether
Amaya’s substantial rights were violated. United States v.
Tuangmaneeratmun, 925 F.2d 797, 803-04 (5th Cir. 1991). Because of
the virtual congruity between the maximum statutory sentence and
the longest time that Amaya might actually serve, the court’s
omission did not affect appellant’s substantial rights.
Fourth, Amaya pled guilty without a plea agreement
constraining the ability to appeal his sentence, but he has not
demanding standard, this court’s errors were harmless.
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appealed the sentence. Nevertheless, at the sentencing colloquy,
Amaya’s counsel admitted that the 97-month sentence would be
“appropriate,” although he argued for a downward departure or a
different sentencing calculation that would have yielded a sentence
half as long. On its face, the concession of appropriateness is
inconsistent with a claim of harmful error in regard to the
validity of the plea. Finally, examining both the PSR and
sentencing hearing, we find no indication that the court’s
omissions had any effect on the guilty plea.
No reversible error has been shown. AFFIRMED.
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