IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10464
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD GENE BROOKS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:99-CR-311-ALL-H
May 2, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
We previously vacated the sentence of Donald Gene Brooks and
remanded his case to the district court for resentencing to allow
all parties notice of and an opportunity to respond to the district
court’s grounds for upward departure.1 Brooks has appealed again,
arguing for the first time that the district court failed to
*
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this opinion should not be published and is not precedent except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.
1
United States v. Brooks, No. 00-10072 (5th Cir. Dec. 13,
2000) (unpublished per curiam).
explain the nature of the charge to which his plea was offered, in
violation of Fed. R. Crim. P. 11(c)(1).
As the Supreme Court very recently held that an unobjected-to
alleged Rule 11 violation is reviewed only for plain error on
direct appeal, a fortiori an unobjected-to claimed Rule 11
violation raised for the first time on a second appeal, such as
Brooks’, is likewise reviewed only for plain error.2 To show plain
error, Brooks must demonstrate a clear and obvious error that
affects his substantial rights, i.e., an error that is prejudicial
and affects the outcome of the proceedings; in most cases, we will
not exercise our discretion to correct any error unless it
seriously affects the fairness, integrity or public reputation of
judicial proceedings.3
"[A] reviewing court may consult the whole record when
considering the effect of any error on substantial rights."4 Our
review of the entire record persuades us that Brooks has not shown
reversible plain error based on any violation of Rule 11(c)(1) in
his plea colloquy.5
AFFIRMED.
2
United States v. Vonn, 122 S. Ct. 1043, 1046 (2002).
3
United States v. McIntosh, 280 F.3d 479, 482 (5th Cir.
2002).
4
Vonn, 122 S. Ct. at 1046.
5
Cf. United States v. Smith, 184 F.3d 415, 417 (5th Cir.
1999) (review under harmless error standard).
2