United States v. Gilberto Villarreal , 447 F. App'x 586 ( 2011 )

Case: 10-41352 Document: 00511646906 Page: 1 Date Filed: 10/27/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 27, 2011
No. 10-41352
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GILBERTO VILLARREAL,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:10-CR-761-1
Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Gilberto Villarreal pleaded guilty to possession with intent to distribute
2.26 kilograms of marihuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D).
The district court sentenced Villarreal to 18 months of imprisonment and 10
years of supervised release. He argues on appeal that the district court
committed reversible error by misinforming him at his guilty plea hearing that
he faced a maximum term of three years of supervised release, when he faced a
statutory maximum term of life of supervised release. He relies, inter alia, upon
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 10-41352 Document: 00511646906 Page: 2 Date Filed: 10/27/2011
No. 10-41352
the “worst-case scenario” analysis set forth in United States v. Reyes, 300 F.3d
555, 560-61 (5th Cir. 2002), to support his argument that he has established
reversible plain error.
As Villarreal did not object to error under Rule 11 of the Federal Rules of
Criminal Procedure in the district court, this court reviews his claim for plain
error. United States v. Vonn, 535 U.S. 55, 58-59 (2002); United States v.
Dominguez Benitez, 542 U.S. 74, 81-83 (2004). To establish plain error,
Villarreal must show a forfeited error that is clear or obvious and that affects his
substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If he
makes such a showing, this court has the discretion to correct the error but will
do so only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id. This court has determined that Dominguez Benitez,
542 U.S. at 83, requires a defendant who asserts that Rule 11 error amounts to
reversible plain error to demonstrate both that his substantial rights were
adversely affected and that he would not have entered his guilty plea but for the
error. See United States v. Castro-Trevino, 464 F.3d 536, 544 (5th Cir. 2006); see
also United States v. Garcia-Paulin, 627 F.3d 127, 131 (5th Cir. 2010). Villarreal
has not established a “reasonable probability that, but for the error, he would
not have entered the plea.” See Dominguez Benitez, 542 U.S. at 83-85. He thus
has not shown that the district court committed plain error. See id.
AFFIRMED.
2