United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 23, 2005
Charles R. Fulbruge III
Clerk
No. 04-41614
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERICK CUEVAS-MENDEZ, true name Erick Elesvan Cuevas-Mendez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:04-CR-108-1
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Erick Cuevas-Mendez (Cuevas) appeals his conviction and
sentence following his guilty plea to possession with intent to
distribute more than five kilograms of cocaine. Cuevas argues
that his guilty plea was rendered invalid because the district
court failed to advise him properly of the term of supervised
release that he faced. The district court complied with FED. R.
CRIM. P. 11(b)(1)(H).
*
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this opinion should not be published and is not precedent except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. 04-41614
-2-
Given that the district court imposed a sentence at the
bottom of the Guidelines and that Cuevas has not identified any
circumstances that would warrant a downward departure, Cuevas
cannot show that the court’s failure to advise him fully
concerning the court’s ability to depart from the Sentencing
Guidelines affected his substantial rights. See United States v.
Vasquez, 216 F.3d 456, 459 (5th Cir. 2000).
Cuevas fails to identify any Rule 11 error relative to the
district court’s purported failure to explain the possibility of
obtaining a reduction in his sentence for providing substantial
assistance to the Government pursuant to U.S.S.G. § 5K1.1. See
FED. R. CRIM. P. 11. Cuevas’s suggestion that the trial court
erred by failing to allow him to withdraw his plea is frivolous
given that Cuevas never sought to withdraw his plea in the
district court.
Last, Cuevas has established obvious error because he was
sentenced under a mandatory Guidelines regime. See United States
v. Valenzuela-Quevedo, 407 F.3d 728, 733 (5th Cir. 2005). Cuevas
fails, however, to meet his burden of showing that the district
court’s comments that it hated the sentence that Cuevas, a first-
time offender, faced and that it was “so long” mean that the
district court would have imposed a lesser sentence under
advisory Guidelines. See United States v. Bringier, 405 F.3d
310, 318 & n.4 (5th Cir. 2005), petition for cert. filed (July
26, 2005) (No. 05-5535); United States v. Mares, 402 F.3d 511,
No. 04-41614
-3-
521 (5th Cir. 2005)), petition for cert. filed (Mar. 31, 2005)
(No. 04-9517).
AFFIRMED.