United States v. Lara , 313 F. App'x 702 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 5, 2009
No. 07-41243
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ADOLFO LARA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-968-7
Before JOLLY, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Adolfo Lara appeals his guilty plea conviction for conspiracy to possess
with intent to distribute more than 100 kilograms of marijuana. Because Lara
had a prior felony drug conviction, he faced a statutory minimum sentence of 10
years of imprisonment, and the district court sentenced Lara to the statutory
minimum sentence.
For the first time on appeal, Lara argues that his guilty plea was not
knowing and voluntary because of errors made by the magistrate judge at
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 07-41243
rearraignment. Specifically, he asserts that the magistrate judge violated F ED.
R. C RIM. P. 11 by twice advising him incorrectly that he faced a statutory
minimum sentence of five years of imprisonment and by giving confusing and
incorrect admonishments regarding the ways that he could receive a sentence
below the statutory minimum sentence. He contends that the magistrate judge
also improperly stated that the district court was constrained only by the
statutory maximum sentence if it departed from the guidelines sentence range.
Because Lara did not raise a F ED. R. C RIM. P. 11 objection in the district
court, our review is for plain error. See United States v. Vonn, 535 U.S. 55, 59
(2002). To show plain error, Lara must show an error that is clear or obvious
and that affects his substantial rights. See United States v. Baker, 538 F.3d 324,
332 (5th Cir. 2008), cert. denied, 2009 WL 56591 (Jan. 12, 2009) (No. 08-7559).
If he makes such a showing, we have the discretion to correct the error but will
do so only if the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See id. In order to show that error at
rearraignment affects his substantial rights, Lara “must show 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). We “may consult the whole
record when considering the effect of any error on substantial rights.” Vonn, 535
U.S. at 59.
At rearraignment, the magistrate judge erred by twice advising Lara that
he faced a statutory minimum sentence of five years and by advising Lara that
the district court was constrained only by the statutory maximum sentence if it
departed from the guidelines sentence range. The magistrate judge, however,
corrected her error regarding the statutory minimum sentence, and she twice
advised Lara that he faced a statutory minimum sentence of 10 years.
Furthermore, the plea agreement that Lara signed correctly stated the statutory
minimum sentence. In view of the entire record, Lara has not shown that, but
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No. 07-41243
for the errors at rearraignment, he would not have entered a guilty plea, and,
therefore, has not shown plain error. See Dominguez Benitez, 542 U.S. at 82-83.
Lara argues that he received ineffective assistance of counsel in the
district court. Lara complained about his counsel’s performance to the district
court, and his counsel responded to the complaints. Lara’s ineffective assistance
of counsel claims, however, concern matters outside of the record. Furthermore,
the district court did not hear sworn testimony from Lara or his counsel, and it
did not make any factual findings regarding the ineffective assistance of counsel
claims. Accordingly, the record is not sufficiently developed for us to consider
Lara’s ineffective assistance of counsel claims, and the claims are denied without
prejudice to Lara’s right to raise them in a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255. See United States v. Kizzee, 150 F.3d
497, 502-03 (5th Cir. 1998); United States v. Brewster, 137 F.3d 853, 859 (5th
Cir. 1998).
AFFIRMED.
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