United States v. Arzate-Davalos

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
May 1, 2009
No. 08-20275
Summary Calendar Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ALFREDO ARZATE-DAVALOS

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CR-476-2

Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Alfredo Arzate-Davalos (Arzate) pleaded guilty to conspiracy to harbor
illegal aliens. He was sentenced to 33 months of imprisonment, the lowest
possible term under the applicable guidelines sentencing range.
Arzate appeals his conviction but makes no argument with regard to his
sentence. Arzate seeks to have his plea set aside, asserting that it was

*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
 No. 08-20275

unknowing and, thus, involuntary due to the district court’s failure to comply
with the requirements of F ED. R. C RIM. P. 11 during his rearraignment.
When, as here, a defendant does not object to Rule 11 errors in the district
court, plain error review applies. See United States v. Vonn, 535 U.S. 55, 59
(2002). To show plain error, the appellant must show an error that is clear or
obvious and that affects his substantial rights. United States v. Baker, 538 F.3d
324, 332 (5th Cir. 2008), cert. denied, 129 S. Ct. 962 (2009). If the appellant
makes such a showing, this court has the discretion to correct the error but only
if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. Arzate has failed to show that, but for the asserted Rule 11
errors, he would not have pleaded guilty. See United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004). Nor has he shown that, taken together, the
district court’s omissions had a cumulative effect sufficient to undermine
confidence in the outcome of the proceeding. See id. Accordingly, he has failed
to show that his plea was unknowing and involuntary. Id.
AFFIRMED.

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