Case: 14-40083 Document: 00512834158 Page: 1 Date Filed: 11/12/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-40083
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
November 12, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JESUS RODRIGUEZ-LOSOYA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:13-CR-397-2
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Jesus Rodriguez-Losoya pleaded guilty to possession with intent to
distribute more than 100 kilograms of marijuana. That offense requires a
prison term of not less than five years and not more than forty. The minimum
term of supervised release is four years. The district court sentenced
Rodriguez within those statutory ranges to a prison term of seventy months
and four years of supervised release. On appeal, Rodriguez contends that
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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during the plea colloquy the district court improperly advised him of the
penalties he faced. He asks to have his sentence modified or his plea vacated.
According to the transcript of the plea colloquy, immediately after
correctly identifying the minimum prison term as five years, the district court
incorrectly identified the maximum as four years. The district court also stated
that the supervised release term was only two years, when the statute requires
at least four years. No one objected to these recitations at the plea colloquy.
Rodriguez did not object to the prior recitation of penalties in response to the
presentence report, which stated the correct penalties; nor did he move to
withdraw his plea.
Rodriguez now contends that his right to due process was violated by the
district court’s incorrect statements about the possible penalties. Rodriguez
also says that the district court failed to properly advise him about his right to
persist in his not-guilty plea, his right to counsel, and the mandatory special
assessment. But because he makes no argument to support these assertions,
he has abandoned them. See United States v. Reagan, 596 F.3d 251, 254–55
(5th Cir. 2010).
Rodriguez’s claim is reviewed for plain error. See United States v. Vonn,
535 U.S. 55, 62–63 (2002). Rodriguez must show that a forfeited error was
“clear or obvious, rather than subject to reasonable dispute,” and that the error
affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he does, we have the discretion to correct the error if it seriously
affects the integrity, fairness, or public reputation of the court proceedings. Id.
We first note that a transcription error may be to blame for the “four
year” statutory minimum reference. “Four” is just a syllable away from forty,
the district court had just stated the five year minimum, and no lawyer
objected to what would have been an obvious mistake. We will nonetheless
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review Rodriguez’s appeal on the assumption that the transcript is accurate,
especially in light of the Government’s concession that the district court
committed clear error under Rule 11 by misstating the possible penalties. To
show that such an error was prejudicial in that it affected his substantial
rights, Rodriguez “must show a reasonable probability that, but for the error,
he would not have entered the plea.” United States v. Dominguez Benitez, 542
U.S. 74, 83 (2004); see United States v. Glinsey, 209 F.3d 386, 394–95 (5th Cir.
2000) (resentencing defendant based on reasoning that misinformation about
restitution affected his plea).
Rodriguez argues that he need not show prejudice under Dominguez
Benitez because he is not stating a Rule 11 claim but rather a due process claim
that his plea was not knowing and voluntary. He cites no case, however,
finding that a plea violated due process because of the type of Rule 11 errors
raised here. And the Supreme Court has held that “omission of a single Rule
11 warning without more is not colorably structural.” Dominguez Benitez, 542
U.S. at 81 n.6. Rule 11 provides that a “variance from the requirements of this
rule is harmless error if it does not affect substantial rights.” FED. R. CRIM. P.
11(h). Rule 11(h) “calls for across-the-board application of the harmless-error
prescription (or, absent prompt objection, the plain-error rule).” United States
v. Davila, 133 S. Ct. 2139, 2149 (2013).
Rodriguez offers only his bare assertion that the misstatements affected
his substantial rights. He does not argue that, but for the district court’s error,
he would not have pleaded guilty, and he has likewise declined to articulate
any theory of prejudice by showing that the misstatements actually affected
his plea in any significant way. We are not convinced that Rodriguez would
have decided to go to trial instead of pleading guilty if he had been given the
correct penalty ranges at his plea colloquy. His “failure to take issue with his
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No. 14-40083
potential sentence once he ha[d] been properly advised in the PSR suggests
that the district court’s failure to inform him of his sentencing exposure was
not a significant factor in his decision to plead guilty.” United States v.
Zamora-Andrade, 544 F. App’x 438, 439 (5th Cir. 2013); see also United States
v. Alvarado-Casas, 715 F.3d 945, 955 (5th Cir. 2013) (“Our conclusion is
buttressed by Alvarado-Casas’s decision not to move under Rule 11(d)(2) to
withdraw his plea after the PSR made him aware of his true sentencing
exposure.”) Moreover, his sentence was only ten months above the statutory
minimum, of which he was unquestionably advised. We refused to find that a
Rule 11 error concerning penalty ranges affected substantial rights even when
the sentence received was seventy months above the maximum sentence
incorrectly stated by the district court at the plea colloquy. Alvarado-Casas,
715 F.3d at 954–55.
For these reasons, the district court’s judgment is AFFIRMED.
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