United States v. Brooks ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21313
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VERNON EARL BROOKS,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-547-ALL
September 5, 2002
Before GARWOOD, WIENER and DENNIS, Circuit Judges.
PER CURIAM:*
Vernon Earl Brooks has appealed his guilty-plea conviction and
sentence for possession of a firearm as a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). We affirm.
Brooks contends that he is entitled to replead because the
district court failed to advise him of the length of the prison
term he could receive if the court were to revoke his term of
*
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opinion should not be published and is not precedent except under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.
supervised release, although it did inform him that on such
revocation the court could “send you back to prison.”1
We apply a plain error analysis because the said omission was
not objected to in the district court. United States v. Vonn, 122
S. Ct. 1043, 1046 (2002), United States v. Reyes, ___ F.3d ___ (5th
Cir. June 12, 2002, No. 01-50737), 2002 WL 1290864. Under this
analysis, Brooks has the burden to show (1) there is an error, (2)
that is clear and obvious, and (3) that affects his substantial
rights. United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001).
If these factors are established, the decision to correct the
forfeited error still lies within this court’s sound discretion,
which will not be exercised unless the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.
Id. To evaluate the effect of any error on substantial rights, we
determine whether “the district court’s flawed compliance with . .
. Rule 11 . . . may reasonably be viewed as having been a material
factor affecting [the defendant]’s decision to plead guilty.”
United States v. Johnson, 1 F.3d 296, 302 (5th Cir. 1993). “[W]e
focus on whether the defendant’s knowledge and comprehension of the
full and correct information would have been likely to affect his
willingness to plead guilty.” United States v. Bond, 87 F.3d 695
(5th Cir. 1996). In making this determination, we may consult the
1
The court also asked defense counsel if he thought further
advice of rights under Rule 11 was required, and counsel responded
in the negative.
2
whole record on appeal. Vonn, 122 S. Ct. at 1046; Johnson, 1 F.3d
at 302.
In making this determination, the court in Bond considered
factors such as the defendant’s failure to allege that full
compliance with Rule 11 would have affected his decision to plead
guilty, defendant’s extensive criminal history, and that the
evidence that he had committed the underlying offense was strong.
Bond, 87 F.3d at 702. All of these factors apply with equal force
to Brooks. While Brooks’ brief alleged he was “prejudiced” by the
omission of a judicial admonishment as to the exact amount of
prison time that would result from revocation of supervised
release, it is not explicitly alleged that he would have pleaded
differently had this admonishment been given. Defendant’s criminal
history is lengthy and the sufficiency of the evidence he committed
the underlying offense has not been challenged. Finally, in
comparison to the district court’s alleged failure to inform Bond
of the statutory minimum for the offense he had committed which was
not deemed to affect his substantial rights, the error here is more
attenuated, as a longer sentence than Brooks was advised of will
only materialize if he violates the terms of supervised release, a
matter entirely within his control. As such, this error appears no
more harmful than the error in Bond, and arguably less so.
Therefore, although the district court committed error, it most
likely did not affect Brooks’ substantial rights, and we conclude
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that the error is not one which seriously affects the fairness,
integrity or public reputation of judicial proceedings.
Brooks contends that the district court reversibly erred in
sentencing him under the guidelines, by departing upward five
offense levels pursuant to U.S.S.G. § 4A1.3. There was no abuse of
the district court’s wide discretion, however, because the court
gave acceptable reasons for departing and the extent of the
departure is reasonable. See United States v. Route, 104 F.3d 59,
64 (5th Cir. 1997); United States v. Rosogie, 21 F.3d 632, 634 (5th
Cir. 1994).
Brooks contends that the district court abused its discretion
by including a provision in the written judgment directing him to
pay the expense of the drug-treatment program that the court orally
imposed at sentencing. In the alternative, Brooks contends, the
district court impermissibly delegated to the probation office its
authority to set the amount and timing of payments for the court-
ordered drug/alcohol detection and treatment services. This court
recently rejected such claims in United States v. Warden, 291 F.3d
363 (5th Cir. 2002).
Brooks contends that the district court committed plain error
by accepting his guilty plea because the factual basis presented by
the Government failed to establish the interstate-commerce element
of 18 U.S.C. § 922(g)(1). He concedes that this contention is
foreclosed by United States v. Daughtery, 264 F.3d 513 (5th Cir.
4
2001), cert. denied, 122 S. Ct. 1113 (2002), and he has raised it
only to preserve it for further review.
The judgment of the district court is hereby
AFFIRMED.
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