United States v. Sanchez-Ronquillo ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50206
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADAN SANCHEZ-RONQUILLO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-00-CR-1696-1-DB
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September 19, 2001
Before JOLLY, SMITH and STEWART, Circuit Judges.
PER CURIAM:*
Adan Sanchez-Ronquillo (“Sanchez”) pleaded guilty to with
illegal reentry into the United States following deportation, in
violation of 8 U.S.C. § 1326(a)(1). For the first time on
appeal, Sanchez argues that his conviction must be vacated and
that he be allowed to replead because the district court violated
Federal Rule of Criminal Procedure 11(c) during the guilty-plea
proceedings.
When an appellant asserts that a district court failed to
comply with Rule 11, this court reviews for harmless error. See
United States v. Johnson, 1 F.3d 296, 298, 301-02 (5th Cir. 1993)
*
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that this opinion should not be published and is not precedent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.
No. 01-50206
-2-
(en banc) (all errors made in Rule 11 proceedings are subject to
harmless-error review).** The court asks whether the district
court in fact varied from the procedures required by Rule 11, and
if so, whether the variance affected substantial rights of the
defendant. Id.Sanchez argues that under the reasoning of Apprendi v. New
Jersey, 530 U.S. 466 (2000), the indictment charged him with two
offenses, simple reentry after deportation and reentry after
deportation and a felony conviction. He argues that the district
court did not clearly inform him of the nature of the charge to
which he was pleading guilty or insure that he understood the
nature of the charge, in violation of Rule 11(c)(1). Sanchez
concedes that basis of his argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998), but he states that
he wishes to preserve the issue for Supreme Court review in light
of Apprendi. The district court informed Sanchez of, and ensured
that Sanchez understood the nature of, the offense of illegal
reentry after deportation charged against him. The district
court did not vary from Rule 11(c)(1).
The district court did fail to inform Sanchez specifically
of his right to assistance of counsel if he proceeded to a jury
trial, in violation of Rule 11(c)(3). Sanchez contends that this
**
In a recent en banc case, this court implied that
appellate review is for plain error only when a defendant has
failed to raise a Rule 11 challenge in the trial court. United
States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001) (en banc).
Other cases have disagreed on whether to apply the plain error or
harmless error standards. Compare Johnson, 1 F.3d at 298(harmless error), with United States v. Ulloa, 94 F.3d 949, 955
(5th Cir. 1996). Even if we apply the less demanding standard,
any error by the district court was harmless.
No. 01-50206
-3-
error is not harmless and materially affected the validity of his
plea.
Our review of the record convinces us that the district
court’s omission was not material to Sanchez’s decision to plead
guilty. See Johnson, 1 F.3d at 298, 302. Thus, the court’s
variance from Rule 11(c)(3) was harmless error.
AFFIRMED.