United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 13, 2004
Charles R. Fulbruge III
Clerk
No. 03-41179
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAUL MARTINEZ-MENDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-1426-1
Before DAVIS, JONES and CLEMENT, Circuit Judges.
PER CURIAM:*
Saul Martinez-Mendez appeals his guilty-plea conviction
for possession with intent to distribute more than five kilograms
of cocaine. Martinez-Mendez asserts that the district court’s
failure to inform him at his FED. R. CRIM. P. 11 colloquy that he was
subject to a statutory minimum sentence was plain error that
affected his substantial rights. He argues that we should vacate
*
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opinion should not be published and is not precedent except under the limited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.
his plea because the error is of constitutional magnitude and
rendered his plea invalid.
As Martinez-Mendez’s Rule 11 challenge is raised for the
first time on appeal, review for plain error only. United States
v. Vonn, 535 U.S. 55, 59 (2002). Accordingly, he must show:
(1) an error, (2) that is clear and obvious, and (3) that affects
his substantial rights. United States v. Reyes, 300 F.3d 555, 558
(5th Cir. 2002). If these factors are established, we will correct
the forfeited error if, in our discretion, we determine that “the
error seriously affects the fairness, integrity, or public repu-
tation of judicial proceedings.” Id. Under the circumstances
presented in the instant case, the district court’s omission does
not warrant reversal as Martinez-Mendez has not shown that the
error “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id.
For the first time on appeal, Martinez-Mendez argues that
the factual basis is insufficient to support his guilty plea
because it does not establish that he knew the type and quantity of
controlled substance he possessed. He concedes that his argument
is foreclosed by this court’s decision in United States v. Gamez-
Gonzalez, 319 F.3d 695, 700 (5th Cir. 2003), but he raises it to
preserve it for Supreme Court review. Given the foregoing, the
judgment of the district court is AFFIRMED.
2