IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40123
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERTO FLOREZ-GARCIA,
Defendant-Appellant.
_____________________________________________
Appeal from the United States District Court
for the Southern District of Texas
L-99-CR-1116-ALL-S
_____________________________________________
December 13, 2001
Before JOLLY, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Roberto Florez-Garcia was indicted on one count of illegal
entry after deportation and subsequent to a conviction for an
aggravated felony under 8 U.S.C. § 1326(b)(2). The case proceeded
to trial, but, at the conclusion of the government’s case-in-chief,
Florez-Garcia entered a plea of guilty, without the benefit of a
plea agreement. He was later sentenced to 125 months in prison and
a three-year term of supervised release. On appeal, Florez-Garcia
*
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this opinion should not be published and is not precedent except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.
argues that the district court erred in failing to advise him at
the plea hearing of the nature of the charges against him, of the
district court’s power to depart from the Sentencing Guidelines,
and of the effect of a term of supervised release. He argues that
the errors affected his substantial rights and were not harmless,
requiring reversal. We find that the district court erred in
failing to advise Florez-Garcia of the nature of the charges
against him, and that the error affected his substantial rights.
FACTUAL AND PROCEDURAL BACKGROUND
On December 3, 1999 Florez-Garcia was discovered on a freight
train in Texas by agents of the United States Border Patrol. The
agents allegedly questioned Florez-Garcia about his citizenship.
He responded that he was from Mexico and failed to produce
identification documents. Florez-Garcia was arrested as an
undocumented alien. Shortly thereafter he stated that he was born
in Chihuahua, Mexico, and that he last entered the United States
without inspection by wading or swimming across the Rio Grande
River near Laredo, Texas.
Records of the Immigration and Naturalization Service
reflected that Florez-Garcia had been deported from the United
States three times before. In addition, penitentiary packets
introduced into evidence at trial indicated that Florez-Garcia had
previously been convicted for possession of cocaine and, under
aliases on three separate occasions, for burglary of a habitation.
2
As a defense to the indictment for illegal reentry following
a conviction for an aggravated felony, Florez-Garcia alleged that
he was a United States citizen, born in California. However, he
was unable to provide any documentation to support his claim of
citizenship, and the government was unable to find any record
indicating that he was a citizen.
The case proceeded to trial and, at the close of the
government’s case, Florez-Garcia pleaded guilty, without the
benefit of a plea agreement. The district court conducted the plea
hearing on the spot, and, after advising Florez-Garcia of his
rights and asking Florez-Garcia whether he had been coerced to
plead guilty, the court accepted the plea. Although the indictment
was read at the start of the jury trial, during the plea colloquy
the district court did not describe the nature of the charges to
Florez-Garcia, nor read the indictment to him, nor give him an
opportunity to ask questions about the nature of the charges
against him. Also, the district court did not inform him of the
effect that revocation of supervised release could have on his
sentence.
At the sentencing hearing, Florez-Garcia’s attorney informed
the judge that Florez-Garcia had a problem with the sentencing
hearing in its entirety, because he claimed that he had been forced
to plead guilty, that his previous attorney had pressured him, and
that he thought he was pleading guilty to perjury. In response to
questioning by the district court, Florez-Garcia asserted that he
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was a United States citizen so he could not be pleading guilty to
illegal entry; he steadfastly maintained that he had been born in
Los Angeles. However, noting that there was no evidence supporting
the claim of citizenship, the district court stated: “I think it’s
a path we’ve trod many times before. I am, not at this hearing,
going to go into issue of guilty [sic] or innocence I think. We
have a plea of guilty. I am not..., based on anything I have
heard, going to set that aside.”
DISCUSSION
I. The district court’s failure to advise Florez-Garcia of the
nature of the charges against him constitutes reversible
error.
Because a guilty plea results in the waiver of several federal
constitutional rights, such pleas must be entered intelligently and
voluntarily. Boykin v. Alabama, 395 U.S. 238, 242-243, 89 S.Ct.
1709, 1712 (1969). Thus, before accepting a guilty plea, the
district court must address the defendant in open court and
determine that the defendant understands "the nature of the charge
to which the plea is offered." Fed. R. Crim. P. 11(c)(1).
Rule 11(c) errors to which the appellant has objected at the
district court level are reviewed on appeal under a harmless error
standard. See Fed. R. Crim. P. 11(h).1 “Objections and the
1
Harmless error has been the standard of review applied in
numerous cases involving Rule 11 errors. However, in a recent
case involving an alleged Rule 11(f) error to which the appellant
had not objected at the district court, this Court applied a
4
grounds therefor should be made with particularity.” U.S. v.
Anderson, 665 F.2d 649, 660 (5th Cir. 1982). In this case, Florez-
Garcia effectively objected to the district court’s failure to
inform him of the nature of the charges at sentencing, when he
stated that he thought he was pleading guilty to perjury. As is
obvious from its statements at the sentencing hearing, the district
court was aware of the objection, and chose to dismiss it. Thus,
on appeal the standard of review is harmless error. And in this
case, the appellant and the government are in agreement that the
harmless error standard applies.
In the context of Rule 11 violations, harmless error analysis
is composed of two questions: “(1) Did the sentencing court in fact
vary from the procedures required by Rule 11, and (2) if so, did
such variance affect substantial rights of the defendant?” U.S. v.
Johnson, 1 F.3d 296, 298 (5th Cir. 1993) (en banc). A substantial
right has been violated if "the defendant's knowledge and
comprehension of the full and correct information would have been
likely to affect his willingness to plead guilty." Id. at 302.
plain error standard. See U.S. v. Marek, 238 F.3d 310, 315 (5th
Cir. 2001) (en banc). The United States Supreme Court has
granted certiorari to review the question of which standard
applies in cases where the appellant failed to object to a Rule
11 error. See U.S. v. Vonn, 121 S.Ct. 1185 (2001). This issue,
and the question of whether Marek applies not only to Rule 11(f)
but also to Rule 11(c) errors, need not be addressed in this
opinion, as Florez-Garcia objected to the Rule 11(c) error at the
sentencing hearing.
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The district court in the present case varied from the
procedures required by Rule 11(c) in that it did not inform Florez-
Garcia of the nature of the charges against him. It is possible
that the district court relied on the fact that the indictment was
read at the start of the jury trial, on the same day that the plea
colloquy occurred. Traditionally, to ensure that the defendant
understands the nature of the charges against him, this Court has
required that the district court personally inform the defendant of
the nature of the charges. See U.S. v. Shacklett, 921 F.2d 580,
582-83 (5th Cir. 1991). On the other hand, “in cases involving
simple charges, ‘a reading of the 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.” U.S. v. Cuevas-Andrade, 232 F.3d 440, 444 (5th Cir.
2000)(quoting U.S. v. Dayton, 604 F.2d 931, 938 (5th Cir. 1979) (en
banc)). But in Florez-Garcia’s case the district court did not
describe the nature of the charges personally, or direct any other
person to read the indictment at the time of the plea.
The district court’s variance from Rule 11 procedures was not
a harmless error. Here, no plea agreement or factual resume was
presented in the Rule 11 colloquy, and the prosecutor did not offer
a factual basis to support the plea. In this case, the reading of
the indictment at the start of the jury trial was insufficient to
cure the error, as the plea colloquy marked a distinct shift from
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the jury trial. The defendant could reasonably have believed that
his plea addressed different and lesser charges than those made at
trial. As is evident from Florez-Garcia’s statements at
sentencing, he did not understand the nature of the charges to
which he was pleading guilty. From his repeated assertions of U.S.
citizenship, it appears likely that “knowledge and comprehension of
the full and correct information would have... affect[ed] his
willingness to plead guilty." Johnson, 1 F.3d at 302. Thus, the
district court’s failure to inform Florez-Garcia of the nature of
the charges against him constitutes harmful and, therefore,
reversible error.
II. The district court’s failure to inform Florez-Garcia of the
effect of supervised release constitutes harmless error
During the plea colloquy the district court did not to advise
Florez-Garcia of the effect that a term of supervised release could
have on his total possible term of incarceration. Thus, the
district court varied from the procedures required by Rule 11(c),
which provides that “[b]efore accepting a plea of guilty..., the
court must address the defendant personally in open court and
inform the defendant of... the maximum possible penalty provided by
law, including the effect of any... supervised release term.” Fed.
R. Crim. P. 11(c)(1).
However, this Court has held that, if the maximum term of
incarceration under the actual sentence of imprisonment and
7
supervised release is less than the maximum term of incarceration
allowed by law and cited by the district court, then the failure to
inform the defendant of the effect of supervised release is
harmless error. See Cuevas-Andrade, 232 F.3d at 444; U.S. v.
Hekimain, 975 F.2d 1098, 1101-03 (5th Cir.1992). During the plea
colloquy Florez-Garcia was informed that the maximum penalty he
would face was a term of incarceration of 20 years, a possible fine
of $250,000, and a term of supervised release of not more than
three years. In fact, he received a lesser penalty of 125 months’
imprisonment and a three year term of supervised release.
Revocation of supervised release would result in an additional 24
months’ imprisonment. See 8 U.S.C. § 1326(b)(2), 18 U.S.C. §§
3559(a)(3), 3583(e)(3). The maximum term of incarceration under
the actual sentence was less than the maximum term allowed by law,
and of which the defendant was informed during the plea colloquy.
Hence, the error was harmless.
III. The district court’s failure to inform Florez-Garcia of the
court’s power to depart from the sentencing guidelines is
harmless error.
Rule 11 requires that the district court inform the defendant
of “the fact that the court is required to consider any applicable
sentencing guidelines but may depart from those guidelines under
some circumstances.” Fed. R. Crim. P. 11(c)(1). Florez-Garcia
8
contends that the district court did not properly admonish him as
to the court’s power to depart from the sentencing guidelines.
In fact, the district court did not fully explain either the
fact that the court was required to consider the guidelines, or
that the court could depart from them in sentencing.2 The district
court’s statements during the plea colloquy did not refer to the
ranges provided for in the guidelines; instead the court only
pointed out that, although several factors were usually taken into
account in sentencing, the sentence was at the judge’s discretion.
Thus, there was a variance from the procedures required by Rule 11.
However, the court’s statements should have made Florez-Garcia
aware that the judge could sentence him up to the maximum provided
for by law. In addition, the district court did not, in fact,
depart from the sentencing guidelines in deciding Florez-Garcia’s
sentence. Hence, the court’s failure to explain the court’s power
to depart from the sentencing guidelines is harmless. See Cuevas-
Andrade, 232 F.3d at 445; Hekimain, 975 F.2d at 1103-04 (5th
Cir.1992).
Florez-Garcia does not deny that the district court’s failures
to explain the effect of revocation of supervised release and the
2
The district court stated that “under the so-called
sentencing guidelines, ... the Court sentences you on the basis
of a number of factors, including the crime to which you plead
guilty, your prior criminal record, information you provided the
probation office.... But... in the end, the decision as to
sentence is the Court’s to make.”
9
court’s power to depart from the sentencing guidelines, standing
alone, were harmless. However, he argues that when combined with
the court’s failure to inform him of the nature of the charges
against him, these errors affected his substantial rights. As
stated earlier, the district court’s failure to inform Florez-
Garcia of the nature of the charges against him constitutes harmful
error in this case because it is likely that, had he understood the
nature of these charges, Florez-Garcia would not have pleaded
guilty. But it appears unlikely that, had he understood the effect
of revocation of supervised release and the mechanics of
sentencing, Florez-Garcia would have changed his mind about
pleading guilty; that decision was apparently driven by the fact
that he thought he was pleading guilty to perjury, a lesser charge
than that for which he was being tried. Consequently, even
considered in light of the district court’s failure to describe the
nature of the charges, the failure to explain the effect of
revocation of supervised release and to explain the court’s power
to depart from the sentencing guidelines was harmless error. Thus
the only error that affected Florez-Garcia’s substantial rights is
the court’s failure to explain the nature of the charges against
him.
CONCLUSION
Although the district court committed several Rule 11 errors
when taking Florez-Garcia’s plea, only one of these errors is
10
reversible. We know that in courts that are especially busy there
is always the temptation to cut corners. But still, words from the
Seventh Circuit are applicable to appeals such as this one:
“[c]ompliance with Rule 11 is easily achieved. Both judge and
prosecutor can use check-off forms (which are readily available);
it is surprising and regrettable that the court continues to see
appeals of this kind, where a district judge, a prosecutor, and
defense counsel all seem oblivious to the risk.” U.S. v. Driver,
242 F.3d 767, 769 (7th Cir. 2001).
For the aforementioned reasons, Florez-Garcia's conviction and
judgment are hereby VACATED and the case REMANDED to the district
court with instructions that Florez-Garcia be allowed to withdraw
his guilty plea.
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