United States v. Barahona-Mendez ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 27, 2003
Charles R. Fulbruge III
Clerk
No. 02-41098
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR CONAN BARAHONA-MENDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-1303-ALL
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Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Hector Conan Barahona-Mendez (Barahona) appeals his conviction
for attempted illegal reentry into the United States after
deportation and after his conviction for an aggravated felony in
violation of 8 U.S.C. §§ 1326(a), (b)(2). He argues that the
magistrate judge failed to determine at his rearraignment that his
guilty plea was voluntary and not the result of outside promises,
as required by former FED. R. CRIM. P. 11(d) (now FED. R. CRIM. P.
11(b)(2)). He claims that he pleaded guilty based upon his
*
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this opinion should not be published and is not precedent except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.
attorney’s erroneous advice regarding his sentence.
Because Barahona failed to object in the district court to
this alleged FED. R. CRIM. P. 11 error, he bears the burden of
demonstrating plain error, and we may consult the entire record
when determining the effect of this alleged error on his
substantial rights. See United States v. Vonn, 535 U.S. 55, 122 S.
Ct. 1043, 1046 (2002).
The magistrate judge’s inquiries at his rearraignment and the
record as a whole establish that Barahona’s guilty plea was
voluntary. See United States v. Law, 633 F.2d 1156, 1158 and n.1
(5th Cir. 1981). For example, at the rearraignment, Barahona’s
indictment was read to him, and he acknowledged that he understood
the charge. Barahona also confirmed the correctness of the factual
basis for his guilty plea. In addition, Barahona told the
magistrate judge that he had attended college in the United States
and had worked as a business administrator and with computers.
Furthermore, Barahona did not object to the magistrate judge’s
proposed finding that he had entered his guilty plea freely and
voluntarily.
Moreover, Barahona was informed about the maximum penalty for
the crime to which he pleaded guilty; therefore, Barahona was aware
of the consequences of his guilty plea and any erroneous advice of
his counsel to the contrary is immaterial. See United States v.
Jones, 905 F.2d 867, 868 (5th Cir. 1990).
Consequently, Barahona has not shown that the magistrate
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judge’s failure to make the specific inquiry set forth in FED.
R. CRIM. P. 11(d) was plain error. See Vonn, 122 S. Ct. at 1046.
Accordingly, the judgment of the district court is AFFIRMED.
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