Case: 19-10897 Document: 00515574458 Page: 1 Date Filed: 09/22/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
September 22, 2020
No. 19-10897 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Roberto Elias Martinez,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CR-66-5
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Roberto Elias Martinez pleaded guilty, pursuant to a plea agreement,
to possession with intent to distribute a controlled substance. For the first
time on appeal, Martinez argues his plea was unknowing because the district
court violated Federal Rule of Criminal Procedure 11 in advising him that the
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-10897 Document: 00515574458 Page: 2 Date Filed: 09/22/2020
No. 19-10897
maximum possible sentence for his offense was 10 years when it was in fact
20 years.
Plain error review applies. See United States v. Vonn, 535 U.S. 55, 59
(2002). To succeed on plain error review, Martinez must show a clear or
obvious error that affects his substantial rights. See United States v. Mares,
402 F.3d 511, 520-21 (5th Cir. 2005). If he makes such a showing, this court
may exercise its discretion to correct the error only if it “seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. at 520
(internal quotation marks and citation omitted). In determining whether an
alleged Rule 11 violation affects a defendant’s substantial rights, this court
examines whether, in light of the entire record, there exists a “reasonable
probability that, but for the error, he would not have entered the plea.”
United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004).
Before accepting a guilty plea, Rule 11(b)(1)(H) requires the district
court to inform the defendant of “any maximum possible penalty, including
imprisonment.” Although the district court made a clear and obvious error
in advising Martinez of the incorrect maximum sentence, he has failed to
show he would not have pleaded guilty but for the error. See United States
v. Alvarado-Casas, 715 F.3d 945, 954 (5th Cir. 2013). The record establishes
that Martinez was advised of the correct maximum sentence in the plea
agreement and the PSR, he referred to the correct maximum sentence in a
pro se letter to the district court before sentencing, he never asserted he
believed the maximum sentence to be 10 years, and he never attempted to
withdraw his guilty plea. In light of the entire record, there is no reasonable
probability that Martinez would not have pleaded guilty if the district court
had not erred by providing the incorrect maximum sentence at
rearraignment. See United States v. Crain, 877 F.3d 637, 644-45.
Accordingly, the district court’s judgment is AFFIRMED.
2