United States v. Acevedo ( 2021 )

Case: 21-40122 Document: 00516042578 Page: 1 Date Filed: 10/05/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 21-40122 October 5, 2021
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Henry Acevedo,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:20-CR-565-1
Before Barksdale, Willett, and Duncan, Circuit Judges.
Per Curiam:*
Henry Acevedo pleaded guilty to possession of a firearm as a felon, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). He contends the district court
erred by conducting his rearraignment by video conference.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 21-40122
As an initial matter, the Government seeks to enforce the appeal-
waiver in Acevedo’s plea agreement. Acevedo counters his challenge is not
subject to it. Because his challenge fails on the merits, we need not resolve
this issue. See United States v. Story, 439 F.3d 226, 230–31 (5th Cir. 2006)
(noting appeal waivers “do not deprive [our court] of jurisdiction”); United
States v. De Leon, 915 F.3d 386, 389 n.2 (5th Cir. 2019) (pretermitting waiver
because merits of defendant’s challenge implicated plea-agreement’s
validity).
Federal Rule of Criminal Procedure 43 requires defendant to be
“present” when entering a plea. Fed. R. Crim. P. 43(a)(1) (prescribing
rules regarding defendant’s presence). This means physical presence. See
United States v. Navarro, 169 F.3d 228, 235–39 (5th Cir. 1999) (holding
sentencing conducted by video conference violates Rule 43, “[a]bsent a
determination by Congress that closed circuit television may satisfy the
presence requirement” (citation omitted)).
Acevedo, however, did not object to the court’s conducting his
rearraignment by video conference; to the contrary, he consented to that
method. He maintains, nonetheless, his challenge should be reviewed de
novo, contending Rule 43 violations are reversible per se. But see United States
v. Thomas, 724 F.3d 632, 641 (5th Cir. 2013) (noting defendant must
demonstrate prejudice). For the reasons that follow, Acevedo’s challenge is
not subject to de novo review.
Because, as discussed infra, Acevedo did not raise this challenge in
district court, review is only for plain error. E.g., United States v. Broussard,
669 F.3d 537, 546 (5th Cir. 2012). Under that standard, Acevedo must show
a forfeited plain error (clear or obvious error, rather than one subject to
reasonable dispute) that affected his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes that showing, we have the
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Case: 21-40122 Document: 00516042578 Page: 3 Date Filed: 10/05/2021
No. 21-40122
discretion to correct the reversible plain error, but generally should do so only
if it “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings”. Id.As noted, Acevedo does not dispute he knowingly and voluntarily
waived the right to enter his plea in person. Instead, he contends: his consent
is void ab initio because compliance with Rule 43 cannot be waived; and a
condition was not satisfied for proceeding remotely, pursuant to the
Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136,
§ 15002(b), 134 Stat. 281, 528–29 (2020) (CARES Act) (permitting, subject
to certain requirements, video teleconferencing in listed criminal
proceedings, including arraignments).
As for Acevedo’s first contention, given his failure to identify a
decision of our court holding or explaining defendant cannot waive his right
to be present under Rule 43(a), any error in this regard was not “clear or
obvious”. Puckett, 556 U.S. at 135; see United States v. Gonzalez, 792 F.3d
534, 538 (5th Cir. 2015) (noting “lack of binding authority is often dispositive
in the plain-error context”). Acevedo also fails to explain: how the
purported error affects his substantial rights; or how leaving it uncorrected
affects the fairness, integrity, or public reputation of judicial proceedings.
Regarding his CARES-Act challenge (district court did not state reasons for
why delaying plea would cause “serious harm to the interests of justice”), he
has not demonstrated it warrants reversal under the plain-error standard.
AFFIRMED.
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