United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 21, 2004
Charles R. Fulbruge III
Clerk
No. 03-41043
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS RODRIGUEZ-MORALES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-03-CR-237-ALL
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Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Jose Luis Rodriguez-Morales (“Rodriguez”) appeals his
guilty-plea conviction of entering the United States without
the consent of the Attorney General, after having been excluded
or deported, in violation of 8 U.S.C. § 1326(a) and (b).
For the first time on appeal, Rodriguez contends that during his
rearraignment proceeding the magistrate judge, to whom Rodriguez
had given consent to take his plea, violated FED. R. CRIM. P. 11
in various instances.
*
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that this opinion should not be published and is not precedent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. 03-41043
-2-
Because a guilty plea involves the waiver of several
constitutional rights, it must be made intelligently and
voluntarily. Boykin v. Alabama, 395 U.S. 238, 242-44 (1969).
Rule 11 requires the district court to follow certain procedures
to determine whether a defendant’s guilty plea is made knowingly
and voluntarily. This court reviews the district court’s
compliance with Rule 11 to determine (1) whether the court varied
from Rule 11’s procedures and, if so, (2) whether the variance
affected the defendant’s substantial rights. United States
v. Johnson, 1 F.3d 296, 298 (5th Cir. 1993) (en banc). When an
appellant allows an error in a guilty-plea colloquy to pass
without objection, this court reviews for plain error only.
United States v. Vonn, 535 U.S. 55, 59 (2002). To establish
plain error, an appellant bears the burden to show that (1) there
is an error (2) that is “clear” or “obvious” and (3) that affects
his substantial rights. United States v. Olano, 507 U.S. 725,
731-37 (1993).
Rodriguez’s contention that the magistrate judge failed
to inform him of the applicable minimum sentence is frivolous
because 8 U.S.C. § 1326 does not prescribe a minimum sentence.
Rodriguez challenges the magistrate judge’s failure to give at
least two Rule 11 warnings that have been deleted from the
current version of Rule 11, which applied to Rodriguez**:
**
The Federal Rules of Criminal Procedure were amended
effective December 1, 2002. Because Rodriguez’s rearraignment
occurred after that date, the current version controls.
No. 03-41043
-3-
First, Rodriguez argues that the “effect” of supervised release
was not explained to him and, second, he maintains that the
magistrate judge failed to inquire whether his “willingness
to plead guilty” was the result of discussions between the
Government’s attorney and his own. Because Rule 11 no longer
contains such requirements, Rodriguez cannot show plain error as
to these alleged shortcomings. Finally, the magistrate judge’s
failure to mention that the district court had discretion to
depart from the applicable guideline imprisonment range was not
plain error, because the district court did not make a departure.
See United States v. Cuevas-Andrade, 232 F.3d 440, 444-45
(5th Cir. 2000).
The appeal is DISMISSED as frivolous. 5TH CIR. R. 42.2.