UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 01-40280
(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JECCSAN ORTIZ-SALAZAR,
Defendant - Appellant.
Appeal from the United States District Court
For the Southern District of Texas
V-00-CR-91-ALL
September 17, 2001
Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
H. Michael Sokolow (“Sokolow”), a court-appointed Federal Public Defender for the
defendant-appellant Jeccsan Ortiz-Salazar (“Ortiz-Salazar”), has filed a motion to withdraw as
*
Pursuant to Fifth Circuit Rule 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumst ances set forth in Fifth Circuit
Rule 47.5.4.
counsel in accordance with Anders v. California, 386 U.S. 738 (1967). We grant the motion, holding
that there are no non-frivolous grounds for appealing Ortiz-Salazar’s conviction for illegal re-entry
by a deported alien convicted of an aggravated felony in violation of 8 U.S.C. § 1326(a) and
§ 1326(b)(2). Consequently, we also dismiss Ortiz-Salazar’s appeal.
Ortiz-Salazar, a lawful resident alien, was convicted on a cocaine charge and deported from
the United States. Sometime later, he illegally re-entered the United States. On October 13, 2000,
agent s from the Immigration and Naturalization Service found Ortiz-Salazar in a jail in Victoria,
Texas. He was subsequently indicted for illegally re-entering the United States following an
aggravated felony conviction in violation of 8 U.S.C. § 1326(a) and § 1326(b)(2).
The court appointed Sokolow, a Federal Public Defender, to represent Ortiz-Salazar, who
eventually pleaded guilty to the charge in the indictment. Relying on the Presentence Report
(“PSR”), the district court sentenced him to 41 months imprisonment, three years of supervised
release, and a special assessment fee of $100. Ortiz-Salazar filed an appeal, objecting to both his
guilty plea and the sentence.
Sokolow has filed a motion to withdraw, contending that there are no non-frivolous issues
for appeal. The Supreme Court in Anders held that a court-appointed attorney can withdraw from
a direct criminal appeal if the attorney, after a “conscientious examination” of the case, finds no
meritorious grounds for appeal. Anders, 386 U.S. at 744. After examining Sokolow’s Anders brief,
the pro se brief submitted by Ortiz-Salazar and the trial record, we find four potential issues on
appeal. All of them lack merit.
The first issue is whether the district court substantially complied with the plea requirements
of the Federal Rules of Criminal Procedure. Rule 11(c) stipulates what information and advice the
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district court should give to a defendant who pleads guilty. See FED. R. CRIM. P. 11(c). At the plea
hearing, the court asked Ortiz-Salazar if he understood, among other things, that he was not obliged
to plead guilty; that he would be waiving his right to a trial; and that he could face up to twenty years
in prison. Ortiz-Salazar, aided by an interpreter, said that he understood and pleaded guilty.
The district court, however, failed to inform Ortiz-Salazar that he was under oath at the plea
hearing, and that he could be prosecuted for perjury if he gave false statements. See FED. R. CRIM.
P. 11(c)(5) (requiring this perjury admonishment). We apply a harmless-error analysis when a district
court fails to comply strictly with Rule 11(c). See United States v. Johnson, 1 F.3d 296, 298 (5th Cir.
1993) (en banc) (asking if the district court varied from the Rule 11 procedures and if that variance
affected substantial rights of the defendant). We find that the district court’s failure to give the
perjury admonishment was harmless error, because Ortiz-Salazar does not contend that he perjured
himself, nor does he claim he was prejudiced by the court’s error. See United States v. Law, 633 F.3d
1156, 1157 (5th Cir. 1981) (holding that the failure to give the perjury admonishment was harmless
error).
Second, Ortiz-Salazar makes an Apprendi argument, claiming that his indictment supposedly
failed to mention that he had earlier been convicted of an aggravated felony. See Apprendi v. New
Jersey, 530 U.S. 466 (2000). Contrary to Ortiz-Salazar’s assertion, the indictment states that he had
been deported after having “been convicted of an aggravated felony.” Even if the indictment had not
mentioned the prior aggravated felony, his argument would fail because the Supreme Court has held
that 8 U.S.C. § 1326(b)(2) is a penalty provision, and not an element of the crime. See Almendarez-
Torres v. United States, 523 U.S. 224 (1998). The Supreme Court in Apprendi expressly declined
to overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; see also United States v. Dabeit,
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231 F.3d 979, 984 (5th Cir. 2000) (recognizing that Almendarez-Torres remains good law).
Third, Ortiz-Salazar claims that the district court erred in calculating his sentence. After
reviewing the record, we find no error. The district court found that the base offense level for illegal
re-ent ry is eight. See U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 (2000). It then added 16
levels under § 2L1.2(b)(1)(A) because Ortiz-Salazar had been deported after an aggravated felony.
That level was reduced by three fo r timely acceptance of responsibility. See U.S. SENTENCING
GUIDELINES MANUAL § 3E1.1(a),(b). Thus, the total offense level was 21. Given his prior criminal
history, Ortiz-Salazar fell into criminal history category II, resulting in an imprisonment range of 41
to 51 months. See U.S. SENTENCING GUIDELINES MANUAL ch. 5, p. A. The court ultimately meted
out a 41-month prison term.
Finally, there remains the issue of whether Sokolow rendered ineffective assistance of counsel
by failing to argue certain mitigating factors, such as extreme family hardship. “The general rule in
this circuit is that a claim of ineffective assistance of counsel cannot be resolved on direct appeal when
the claim has no t been raised before the district court since no opportunity existed to develop the
record on the merits of the allegations.” United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir.
1987). We cannot review this claim because of insufficient development of the record; Ortiz-Salazar
can raise it in his petition for habeas relief.
The Anders motion is GRANTED, and Ortiz-Salazar’s appeal is consequently DISMISSED.
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