IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40028
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADELAIDO ALCOCER-MARTINEZ,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. C-00-CR-303-1
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August 15, 2001
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Adelaido Alcocer-Martinez appeals his guilty-plea conviction
and sentence for transporting an illegal alien within the United
States, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). Alcocer
argues that his guilty plea is invalid because the district court
“did not go far enough” in determining whether his plea was
voluntary and understood. He further asserts that the district
court should have withdrawn his plea at sentencing after he
allegedly professed his innocence.
Because a guilty plea involves the waiver of several
constitutional rights, it must be made intelligently and
*
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that this opinion should not be published and is not precedent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. 01-40028
-2-
voluntarily. Boykin v. Alabama, 395 U.S. 238, 242-44 (1969).
“In the federal regime . . . Rule 11 of the Federal Rules of
Criminal Procedure . . . governs the duty of the trial judge
before accepting a guilty plea.” Id. at 243 n.5. This court
reviews the district court’s compliance with Rule 11 to determine
(1) whether the district court varied from Rule 11’s procedures
and, if so, (2) whether the variance affected the defendant’s
substantial rights. United States v. Johnson, 1 F.3d 296, 298
(5th Cir. 1993)(en banc); see Fed. R. Crim. P. 11(h).**
At rearraignment, Alcocer stated that he understood the
charge to which he was pleading guilty. See Fed. R. Crim.
P. 11(c)(1). He further stated that he understood the elements
of an offense under 8 U.S.C. § 1324(a)(1)(A)(ii), including the
knowledge element. Id. Alcocer testified that no one forced him
to plead guilty and that any promises, apart from the plea
agreement, had been made to cause him to plead guilty. His
decision to plead guilty was “entirely voluntary.” See Fed.
R. Crim. P. 11(d).
In arguing that his plea was not made knowingly or
voluntarily, Alcocer focuses on the statements he and his counsel
made at rearraignment regarding whether Alcocer knew the aliens
he transported were illegal. At most, the discussion regarding
**
Although we have reviewed Rule 11 challenges for plain
error only in cases in which the defendant made no objection in
the district court, see United States v. Marek, 238 F.3d 310, 315
(5th Cir. 2001) (en banc), petition for cert. filed, (U.S. Mar.
29, and Apr. 4, 2001) (Nos. 00-1526, 00-9419); United States v.
Glinsey, 209 F.3d 386, 394 and n.8 (5th Cir.), cert. denied, 121
S. Ct. 282 (2000); United States v. Ulloa, 94 F.3d 949, 955 (5th
Cir. 1996), as was the case herein, we apply the de novo standard
of our en banc decision in Johnson.
No. 01-40028
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the knowledge element of the offense reflected that Alcocer
questioned whether the Government would be able to meet its
burden of proof on this issue if the case proceeded to trial.
Contrary to Alcocer’s assertions, the district court followed the
dictates of Rule 11 in determining that Alcocer understood the
nature of the charge and in insuring that his plea was voluntary.
See Johnson, 1 F.3d at 298; Fed. R. Crim. P. 11(c)(1), (d).***
Alcocer asserts that the district court should have
withdrawn his guilty plea after he allegedly professed his
innocence prior to sentencing. He admits that he did not move to
withdraw his plea, and he cites no authority to support his
argument that a district court has the authority to withdraw a
guilty plea, sua sponte, in these circumstances. The cases cited
by Alcocer in support of his argument involved proper motions to
withdraw made by defendants prior to sentencing pursuant to Rule
32(e) or guilty pleas that were set aside in a 28 U.S.C. § 2255
proceeding or direct appeal due to Rule 11 violations. See Fed.
R. Crim. P. 32(e). Alcocer has also failed to demonstrate that
the district court varied from the dictates of Rule 11 in
determining whether he entered his guilty plea knowingly and
voluntarily.
The district court’s judgment, therefore, is
AFFIRMED.
***
To the extent that Alcocer’s argument can be construed as
a challenge to the factual basis of his guilty plea, his argument
is without merit. See Fed. R. Crim. P. 11(f). At rearraignment,
Alcocer admitted to a detailed recitation of the facts supporting
his plea.