REVISED AUGUST 23, 2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 09-50987 FILED
Summary Calendar August 22, 2011
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BERNARDINO SAUCEDO-RIOS,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:09-CR-136-1
Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
Bernardino Saucedo-Rios appeals his guilty plea conviction of illegal
reentry following deportation in violation of 8 U.S.C. § 1326(a). He argues that
the magistrate judge violated Rule 11(b)(1)(D) of the Federal Rules of Criminal
Procedure when he failed to inform Saucedo-Rios that Saucedo-Rios had “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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 09-50987
right to be represented by counsel--and if necessary have the court appoint
counsel--at trial and at every other stage of the proceeding.”
Because Saucedo-Rios did not object in district court to the magistrate
judge’s failure to comply with Rule 11, we review for plain error, which requires
a showing of clear or obvious error that affects substantial rights. See United
States v. Vonn, 535 U.S. 55, 58-59 (2002). In evaluating whether an alleged Rule
11 error affects a defendant’s substantial rights, this court looks to whether
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, 83 (2004).
Saucedo-Rios’s argument is unavailing. The rearraignment transcript
reflects that the magistrate judge told Saucedo-Rios that by pleading guilty he
was giving up “the right to have the attorney present at trial and with you in
any subsequent hearings or proceedings” and that Saucedo-Rios confirmed that
he understood his rights. Thus, although the magistrate’s phrasing may have
constituted a minor deviation from the text of Rule11(b)(1)(D), it did not
constitute a violation of Rule 11. Furthermore, although the magistrate judge
failed to inform Saucedo that he had the right to court-appointed counsel,
Saucedo was, in fact, represented by court-appointed counsel throughout the
proceedings in the district court. See United States v. Sanchez, 650 F.2d 745,
748 (5th Cir. 1981) (holding that Rule 11 “limits the necessity for such a charge
to situations where the defendant is not represented by an attorney at the plea
proceeding”). Finally, there is simply no indication in the record that there
exists a “reasonable probability that, but for the error, [Saucedo] would not have
entered the plea.” Dominguez Benitez, 542 U.S. at 83.
Accordingly, the judgment of the district court is AFFIRMED.
2