United States v. Rene Munoz ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4097
RENE AVELLANEDA MUNOZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CR-98-206)
Submitted: February 8, 2000
Decided: February 24, 2000
Before WILKINS, LUTTIG, and TRAXLER, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Rene Avellaneda Munoz, Appellant Pro Se. Lawrence Patrick Auld,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Rene Avellaneda Munoz appeals his conviction and sentence pur-
suant to his plea of guilty to one count of conspiracy to distribute
marijuana and possess with intent to distribute and distribute mari-
juana in violation of 21 U.S.C. § 846 (1994). On appeal, Munoz con-
tends that: (1) counsel was ineffective; (2) the district court
committed plain error in its determination of the amount of drugs for
sentencing purposes; (3) the district court failed to inform him that by
his guilty plea he was waiving his right to confront and cross-examine
witnesses and his right against compelled self-incrimination; and (4)
the district court failed to determine whether he had an opportunity
to review the presentence investigation report ("PSR") and discuss it
with his counsel. Because we find no reversible error, we affirm.
We decline to review Munoz's claim regarding ineffective assis-
tance of counsel. Because it does not "conclusively appear[ ] from the
record" that counsel was ineffective, United States v. Smith, 62 F.3d
641, 651 (4th Cir. 1995) (internal quotation omitted), this claim is bet-
ter adjudicated in a motion under 28 U.S.C.A. § 2255 (West Supp.
1999). See United States v. DeFusco, 949 F.2d 114, 120 (4th Cir.
1991).
Munoz did not object at sentencing to the drug amount recom-
mended in the PSR. Accordingly, this court reviews for plain error
Munoz's claim regarding the district court's determination of the
amount of drugs attributed to Munoz for sentencing purposes. See
United States v. Grubb, 11 F.3d 426, 440 (4th Cir. 1993). To reverse
for plain error, this Court must "(1) identify an error; (2) which is
plain; (3) which affects substantial rights; and (4) which `seriously
affect[s] the fairness, integrity or public reputation of judicial pro-
ceedings.'" United States v. Moore, 11 F.3d 475, 481 (4th Cir. 1993)
(quoting United States v. Olano, 507 U.S. 725, 732 (1993)). We find
that there was no error. Because there was no objection at sentencing,
the district court did not err in relying on the drug amounts provided
in the PSR. See United States v. Terry, 916 F.2d 157, 162 (4th Cir.
1990).
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We also find that any violation during the Rule 11 proceedings was
harmless.*See United States v. Goins, 51 F.3d 400, 402 (4th Cir.
1995). A court may vacate a conviction made pursuant to a plea "only
if the trial court's violations of Rule 11 affected the defendant's sub-
stantial rights." DeFusco, 949 F.2d at 117; Fed. R. Crim. P. 11(h).
"The court must determine whether the defendant's knowledge and
comprehension of the full and correct information would have been
likely to affect his willingness to plead guilty." Goins, 51 F.3d at 402(internal quotation omitted). Because Munoz was informed in the plea
agreement of the rights he was waiving, we find that the district
court's failure to specifically review those rights was harmless.
We also find that Munoz was not prejudiced by the district court's
failure to specifically determine whether he had an opportunity to
review the PSR and discuss its contents with counsel. See United
States v. Lockhart, 58 F.3d 86, 88-89 (4th Cir. 1995). Munoz has not
established any error in the PSR that he would have successfully chal-
lenged at sentencing had it been established that he did not have an
opportunity to review the PSR.
Accordingly, we affirm Munoz's conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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*Rule 11 of the Federal Rules of Criminal Procedure.
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