UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50455
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ALFREDO GALLEGOS-RAMIREZ,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(DR-00-CR-375-1)
_________________________________________________________________
June 26, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Jose Alfredo Gallegos-Ramirez appeals his guilty-plea
conviction and sentence for illegal reentry, in violation of
8 U.S.C. § 1326, contending: the aggravated-felony conviction that
resulted in his increased sentence under 8 U.S.C. § 1326(b)(2) was
an element of the offense that should have been charged in the
indictment; and his plea was rendered involuntary because, in
violation of FED. R. CIV. P. 11(c)(1), the magistrate judge failed
*
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this opinion should not be published and is not precedent except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.
to address his alleged misunderstanding of the maximum sentence
that he faced.
Ramirez acknowledges correctly that his “element of the
offense” argument is foreclosed by the Supreme Court’s decision in
Almendarez-Torres v. United States, 523 U.S. 224 (1998); he seeks
to preserve the issue for Supreme Court review in the light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi did not
overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; see
also United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000),
cert. denied, 531 U.S. 1202 (2001).
Concerning the involuntary plea argument, a defendant who
fails to object in district court to a FED. R. CRIM. P. 11 error
bears the burden on appeal of demonstrating plain error. United
States v. Vonn, 122 S. Ct. 1043, 1046 (2002). Plain error requires
Ramirez to show “(1) an error; (2) that is clear or plain; [and]
(3) that affects [his] substantial rights”. United States v.
Vasquez, 216 F.3d 456, 459 (5th Cir.), cert. denied, 531 U.S. 972
(2000). Even then, we have discretion not to correct the error;
generally, we will not do so unless it “seriously affects the
fairness, integrity or public reputation of judicial proceedings”.
Id. Ramirez has failed to show the failure to address his alleged
misunderstanding as to the applicable maximum sentence affected his
substantial rights. First, the magistrate judge properly advised
Ramirez of the statutory maximum sentence of 20 years’
imprisonment. Second, there is nothing in the record to show, and
Ramirez does not state on appeal, that, had the magistrate judge
reiterated the statutory maximum sentence after Ramirez expressed
his belief that the maximum sentence was two years, he would not
have pleaded guilty and would have proceeded to trial. See, e.g.,
United States v. Cuevas-Andrade, 232 F.3d 440, 445 (5th Cir. 2001),
cert. denied, 532 U.S. 1014 (2001).
AFFIRMED