Case: 13-51155 Document: 00513011341 Page: 1 Date Filed: 04/20/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-51155
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
April 20, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
CESAR RAUL RIOS,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:11-CR-743-1
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
Cesar Raul Rios appeals his guilty plea conviction for conspiracy to
possess with intent to distribute five kilograms or more of cocaine and aiding
and abetting possession with intent to distribute five kilograms or more of
cocaine. He was sentenced below the advisory guidelines range to ten years of
imprisonment and five years of supervised release.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 13-51155 Document: 00513011341 Page: 2 Date Filed: 04/20/2015
No. 13-51155
As a threshold matter, the Government contends that if this court
determines that the notice of appeal is untimely, the appeal should be
dismissed. Because there is no jurisdictional impediment to reaching the
merits of the appeal, we pretermit the determination of the timeliness of the
notice of appeal and address the issues raised by Rios. See United States v.
Martinez, 496 F.3d 387, 388-89 (5th Cir. 2007).
First, he argues that his due process rights were violated when the
magistrate judge (MJ) erred by failing to advise him that the maximum term
of supervised release was life. Rios concedes that plain-error review applies
and that, to show plain error, he must show a forfeited error that is clear or
obvious and that affects his substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009). He nevertheless argues that he need not show that the
error affected his decision to plead guilty because he is not stating a claim
under Federal Rule of Criminal Procedure 11 but rather a due-process claim
that his plea was not knowing and voluntary. Even if such a narrowly drawn
claim exists, see United States v. Dominguez Benitez, 542 U.S. 74, 84 n.10
(2004), Rios cannot establish that his substantial rights were affected. Rios
was told that he faced five years of supervised release, and he in fact received
a five-year term of supervised release. He was also correctly told that he could
be sentenced to life imprisonment. His presentence report (PSR) correctly
informed him that he faced at least five years of supervised release, but he did
not object to the PSR on this basis, seek to withdraw his plea, or object when
the district court imposed the five-year term. Under the circumstances
presented here, Rios cannot show any error resulting from the imposition of
the five-year term of supervised release that affected his substantial rights.
See Puckett, 556 U.S. at 135.
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Case: 13-51155 Document: 00513011341 Page: 3 Date Filed: 04/20/2015
No. 13-51155
Next, Rios argues that his due process rights were violated when the MJ
asked him how he wished to plead prior to advising him of the rights he was
waiving by pleading guilty. Rios failed to raise this argument in the district
court; as a result, plain-error review applies. See id. At rearraignment, the
MJ asked Rios if he was pleading guilty or not guilty, and Rios responded that
he was pleading guilty. The MJ then advised him of the rights he would be
waiving by pleading guilty. At the conclusion of the hearing, the MJ stated
that he would recommend to the district judge that the guilty plea be accepted.
Rios did not object to the MJ’s recommendation, and the district court
thereafter accepted the recommendation and Rios’s guilty plea. Because the
guilty plea was accepted after Rios was advised of the rights he was waiving,
there was no error. See FED. R. CRIM. P. 11(b)(1).
The judgment is AFFIRMED.
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