United States v. Maritza Herrera , 491 F. App'x 463 ( 2012 )

Case: 10-20591 Document: 00512038999 Page: 1 Date Filed: 10/31/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 31, 2012
No. 10-20591
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARITZA HERRERA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CR-107-1
Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Maritza Herrera appeals her conviction for conspiracy to transport and
harbor undocumented aliens within the United States for the purpose of
commercial advantage and private financial gain. Herrera contends that the
waiver of appeal contained in her plea agreement is unenforceable because her
guilty plea was involuntary and unknowing. Finding no plain error, we AFFIRM
the district court’s judgment.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 10-20591
A guilty plea involves the waiver of several constitutional rights and
accordingly must be made knowingly and voluntarily. Boykin v. Alabama, 395
U.S. 238, 242-44 (1969); see FED. R. CRIM. P. 11. Herrera argues that her plea
was involuntary and unknowing because the district court failed under Federal
Rule of Criminal Procedure 11 to ensure that she understood the full
consequences of her plea agreement. Although Herrera’s plea agreement
contained a waiver of appeal, the validity of the waiver depends on whether
Herrera’s plea was voluntary and knowing. See United States v. Portillo, 18 F.3d
290, 292 (5th Cir. 1994) (“To be valid, a defendant’s waiver of his right to appeal
must be informed and voluntary.”).
Because Herrera did not object on this ground in the district court, plain
error review applies to this issue. See United States v. Brown, 328 F.3d 787, 789
(5th Cir. 2003). To show plain error, the appellant must show a forfeited error
that is clear or obvious and that affects her substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (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. To
demonstrate an effect on her substantial rights based on the district court’s
failure to comply with Rule 11, Hernandez “must show a reasonable probability
that, but for the error, [she] would not have entered the plea.” United States v.
Dominguez Benitez, 542 U.S. 74, 83 (2004).
Herrera was rearraigned together with a co-defendant, Jose Manzur
Romero-Luna. To support her assertion that she “was never asked specifically
about her understanding of the plea agreement,” Herrera relies on the following
exchange:
THE COURT: Now, as you just heard, I’ve been told that the
Government and you have reached an agreement.
As I understand it, the agreement is that you
both will plead guilty to Count 1, the Government
will move to dismiss Count 2 for Mr. Romero, the
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Case: 10-20591 Document: 00512038999 Page: 3 Date Filed: 10/31/2012
No. 10-20591
Government will agree that you’re sorry, and the
Government will not say anything about the low
end of the guideline range, and both of you give
up your opportunity to appeal either directly or
indirectly.
Does that sound like your deal, Mr.
Romero?
DEFENDANT ROMERO-LUNA: Yes, sir.
DEFENDANT HERRERA: Yes, sir.
Herrera asserts that, while the district court adequately admonished Romero-
Luna about his plea agreement during this exchange, it failed to explicitly ask
Herrera whether the terms it had described were also “her deal.” Herrera’s
argument is unavailing, as the record reflects that the district court’s
admonishment was adequate to elicit an affirmative response from Herrera
indicating that she understood that her plea agreement embodied the terms
described by the district court. Because she has not shown that her plea was
involuntary and the record shows that she was aware of the consequences of her
plea, her waiver of appeal is valid. Herrera has not shown any error, much less
plain error.
The district court’s judgment is AFFIRMED.
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