United States v. Denise Jimenez , 427 F. App'x 327 ( 2011 )

Case: 10-40594 Document: 00511497790 Page: 1 Date Filed: 06/03/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 3, 2011
No. 10-40594
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DENISE MICHELLE JIMENEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:05-CR-96-18
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Denise Michelle Jimenez appeals her guilty plea conviction for two counts
of using a communication facility to facilitate a drug offense, in violation of 21
U.S.C. § 843(b), and the two consecutive four-year sentences that she received
for these offenses. Jimenez argues for the first time on appeal that the district
court violated Rule 11 of the Federal Rules of Criminal Procedure by failing to
advise her of the court’s obligation to consider the Sentencing Guidelines and its
discretion to depart from those Guidelines if appropriate. See Rule 11(b)(1)(M).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40594 Document: 00511497790 Page: 2 Date Filed: 06/03/2011
No. 10-40594
She also contends that the parties’ and the court’s confusion about the statutory
maximum sentence she faced establishes that she was not aware of the
consequences of her plea. See Rule 11(b)(1)(H).
Where, as here, a defendant has not objected to a Rule 11 error in the
district court, review is for plain error. See United States v. Vonn, 535 U.S. 55,
59 (2002). 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, 129 S. Ct. 1423, 1429 (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. In reviewing
the effect of a Rule 11 violation, we may review the entire record, not just the
plea hearing transcript. Vonn, 535 U.S. at 59.
In the instant case, Jimenez’s plea agreement sufficiently advised her of
the court’s consideration of the Guidelines and her inability to withdraw her plea
if her sentence was higher than anticipated. As Jimenez signed her plea
agreement and acknowledged that she had read and understood it, this provided
sufficient notice of the Rule 11 provision. See United States v. Cuevas-Andrade,
232 F.3d 440, 444-45 (5th Cir. 2000). Although the district court’s explanation
of the maximum sentence Jimenez faced under § 843(d) was originally confused,
Jimenez has not shown that any error in advising her of the statutory maximum
sentence affected her substantial rights because she does not now assert that she
would not have pleaded guilty but for the erroneous admonishment, and she did
not accept the district court’s offer to withdraw her plea when the court rejected
the defense interpretation of the plea agreement at sentencing. See United
States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). Moreover, the record also
confirms that the court properly advised Jimenez that it could impose two
consecutive four-year sentences, which would result in an eight-year sentence;
Jimenez stated that she understood this. Accordingly, she has not shown
reversible, plain error. See Puckett, 129 S. Ct. at 1429.
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No. 10-40594
Jimenez also asserts that her trial counsel rendered ineffective assistance
during the plea and sentencing proceedings. She contends that counsel did not
understand how the Sentencing Guidelines worked, as reflected by his erroneous
advice that Jimenez would receive no more than four years in prison. She
maintains that counsel should have requested specific performance of that four-
year sentence in light of the Government’s purported breach of the plea
agreement. Jimenez also contends that counsel should have requested that the
district court downwardly depart to concurrent sentence and should have
requested a downward variance based on psychological and emotional factors
reflected in the presentence investigation report. The record is insufficiently
developed to allow consideration at this time of Jimenez’s ineffective assistance
claims. See United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006).
Consequently, the judgment of the district court is AFFIRMED.
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