IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10482
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTEO OCHOA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:99-CR-409-3-R
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February 15, 2002
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Timoteo Ochoa appeals his guilty-plea conviction for
possession with the intent to distribute two pounds of
methamphetamine. See 18 U.S.C. § 2; 21 U.S.C. § 841(a)(1). He
argues that his substantial rights were affected by alleged
variances with the dictates of FED. R. CRIM. P. 11, and thus, his
guilty-plea conviction should be vacated. We AFFIRM.
Ochoa’s primary contention is that the magistrate judge**
failed to apprise Ochoa in open court and determine that Ochoa
*
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that this opinion should not be published and is not precedent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.
**
Ochoa entered his guilty plea before the magistrate
judge. See United States v. Dees, 125 F.3d 261, 264-65 (5th Cir.
1997).
No. 00-10482
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understood the waiver-of-appeal provision in the plea agreement.
See RULE 11(c)(6). RULE 11(c)(6) requires the court, before
accepting the guilty plea, to inform the defendant and determine
that the defendant understands “any provision in a plea agreement
waiving the right to appeal or to collaterally attack the
sentence.” A review of rearraignment reveals that the
magistrate judge failed to comply with this rule. However, no
sentencing error is asserted on appeal. Cf. United States v.
Teeter, 257 F.3d 14, 27 (1st Cir. 2001) (RULE 11(c)(6) error
results in appellate court reviewing sentencing issues). Thus,
the error is harmless. See RULE 11(h); United States v. Johnson,
1 F.3d 296, 298 (5th Cir. 1993) (en banc).
Ochoa also argues that RULE 11 error ensued from the court
reporter’s failure to record the summary of the plea agreement
given by the Assistant U.S. Attorney and from the magistrate
judge’s failure to determine whether Ochoa’s decision to plead
guilty resulted from prior discussions between the parties. Our
independent review detects no variance with RULE 11. See United
States v. Gonzalez, 259 F.3d 355, 358 n.1 (5th Cir. 2001).
AFFIRMED.