United States v. Guajardo-Guzman

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 29, 2005

Charles R. Fulbruge III
Clerk
No. 04-41401
Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JORGE GUAJARDO-GUZMAN

Defendant - Appellant

--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-184-2
--------------------

Before KING, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.

PER CURIAM:*

Jorge Guajardo-Guzman (“Guajardo”) pleaded guilty to

possessing with the intent to distribute more than five kilograms

of cocaine, in violation of 21 U.S.C. § 841, and was sentenced to

the statutory mandatory minimum term of 120 months of

imprisonment. He now argues, for the first time, that his plea

was involuntary because the magistrate judge who presided over

rearraignment did not adequately admonish him regarding the

effects of supervised release or the application of the

*
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this opinion should not be published and is not precedent except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. 04-41401
-2-

sentencing guidelines, as is required by FED. R. CRIM. P. 11. The

argument is reviewed for plain error. See United States v. Vonn,

535 U.S. 55, 59 (2002). To demonstrate plain error, an appellant

must show clear or obvious error that affects his substantial

rights. United States v. Calverley, 37 F.3d 160, 162-64 (5th

Cir. 1994) (en banc).

Contrary to Guajardo’s assertion, the magistrate judge fully

explained the effects of supervised release and also explained

the general effect of the sentencing guidelines. Although the

magistrate judge did not fully explain departures under the

guidelines, any variance from Rule 11 did not affect Guajardo’s

substantial rights given that the guidelines range was irrelevant

due to the fact that he was subject to a mandatory minimum

sentence of 120 months, which fact was specified in his plea

agreement and at rearraignment. Guajardo’s complaint that the

magistrate judge plainly erred in failing to admonish him

specifically regarding safety-valve consideration fails because

Rule 11 requires no such admonition and because Guajardo was

actually aware of the possibility of safety-valve consideration

as it was stipulated in the plea agreement and as he was afforded

several opportunities to debrief for that purpose.

For the first time in his reply brief, Guajardo complains

that the district court erred in sentencing him under a mandatory

guidelines scheme, citing United States v. Booker, 125 S. Ct. 738

(2005). This court will generally decline to address claims not
 No. 04-41401
-3-

raised in an appellant’s initial brief. United States v. Lewis,

412 F.3d 614, 616 (5th Cir. June 14, 2005). Review is, at most,

for plain error. See United States v. Garcia-Rodriguez, F.3d

, No. 03-40906, 2005 WL 1538993 at *4 n.4 (5th Cir. June 30,

2005).

To demonstrate reversible plain error on his Booker claim,

Guajardo must show “that the sentencing judge sentencing under an

advisory scheme rather than a mandatory one would have reached a

significantly different result.” See United States v. Mares, 402

F.3d 511, 521 (5th Cir. 2005), petition for cert. filed (Mar. 31,

2005) (No. 04-9517) (internal quotation marks and citation

omitted). Guajardo cannot make this showing because, as

explained above, he was sentenced to the mandatory minimum

sentence dictated by statute.

The district court’s judgment is AFFIRMED.