IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50495
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERNEL RUIZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-01-CR-138-ALL-EP
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March 10, 2003
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Bernel Ruiz appeals his guilty-plea conviction and 204-month
sentence for possession with the intent to distribute more than
50 grams of crack cocaine, in violation of 21 U.S.C. § 841(a),
and using and carrying a firearm in relation to the possession
with the intent to distribute of more than 50 grams of crack
cocaine, in violation of 21 U.S.C. § 924(c). Ruiz argues, for
the first time on appeal, that the district court failed to
comply with Rule 11(c)(1) in the following manner: 1) by not
*
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that this opinion should not be published and is not precedent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.
No. 02-50495
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informing him, when notifying him of the charges against him, of
the drug quantity involved; 2) by failing to discuss the
possibility of a departure from the applicable sentencing
guidelines range; and 3) by not describing in detail the effects
of supervised release.
Because Ruiz’s arguments are raised for the first time on
appeal, review is for plain error only. See United States v.
Vonn, 535 U.S. 55, 122 S. Ct. 1043, 1046 (2002). This court may
correct forfeited errors only when the appellant shows: (1)
that there is an error, (2) which is clear or obvious, and (3)
which affects his substantial rights. United States v.
Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc) (citing
United States v. Olano, 507 U.S. 725, 731-37 (1993)). This court
will find that a “substantial right” has been violated only if
“the defendant’s knowledge and comprehension of the full and
correct information would have been likely to affect his
willingness to plead guilty.” United States v. Johnson, 1 F.3d
at 302. The “reviewing court may consult the whole record when
considering the effect of any error on substantial rights.”
Vonn, 122 S. Ct. at 1046.
Ruiz’s argument that the district court’s failure to advise
him of the drug quantity involved invalidates his plea is without
merit given that the record establishes that he knew and
understood the quantity of drugs involved, as it was set forth in
both counts of the indictment and in the factual basis for his
No. 02-50495
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written plea agreement. See Johnson, 1 F.3d at 302; see also
Vonn, 122 S. Ct. at 1046. The district court’s failure to advise
Ruiz regarding the application of the sentencing guidelines,
specifically, the possibility of departures from the guidelines
range, is also not grounds for reversal. The plea agreement
offered Ruiz the possibility of a downward departure for
substantial assistance, pursuant to U.S.S.G. § 5K1.1, and
reserved his right to appeal any upward departure, making him
aware of the possibility for departures. Moreover, no upward
departure was in fact imposed; Ruiz was sentenced to the
statutory minimum he was aware he faced, and he thus cannot show
that the district court’s omission affected his substantial
rights. See Johnson, 1 F.3d at 302; see also United States v.
Cuevas-Adrade, 232 F.3d 440, 444-45 (5th Cir. 2000).
Ruiz’s contention that the district court’s failure to
explain the consequences of supervised release invalidates his
plea is similarly unavailing. Although the district court did
not specifically advise Ruiz that he could be sentenced, upon
revocation, to the full term of supervised release imposed, the
omission did not affect Ruiz’s substantial rights because Ruiz
was informed and understood that he could have received a maximum
prison term of life and because that term exceeds both his
aggregate period of incarceration and his “worst-case scenario.”
See Cuevas-Adrade, 232 F.3d at 444.
No. 02-50495
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Ruiz has not demonstrated that any Rule 11 variance by the
district court constituted plain error. Accordingly, the
district court’s judgment is AFFIRMED.