United States v. Javier Casas , 591 F. App'x 258 ( 2015 )

Case: 14-40365 Document: 00512912042 Page: 1 Date Filed: 01/22/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-40365 FILED
Summary Calendar January 22, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JAVIER CASAS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:13-CR-1649
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Javier Casas pleaded guilty to one count of possession, with intent to
distribute, 100 kilograms or more of marijuana and received a within-
guidelines sentence of 100 months in prison, to be followed by a five-year term
of supervised release. On appeal, Casas challenges the acceptance of his guilty
plea and contests his sentence.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-40365
Casas maintains that his guilty plea was not knowing and voluntary
because the district court failed to comply with the requirements set forth in
Rule 11 of the Federal Rules of Criminal Procedure. First, he argues that the
district court failed to advise him that the Government could use any false
statements against him in a prosecution for perjury. Second, Casas contends
that the court was compelled to—but did not—ascertain whether he was
mentally capable of understanding the nature and consequences of his plea,
given that the record provided evidence of his limited educational background
and his history of drug and alcohol abuse. Because Casas did not object to
these errors in the district court, we review for plain error. See United States
v. Vonn, 535 U.S. 55, 58–59 (2002). Under plain error review, “[r]eversal is
appropriate if the error is (1) plain, (2) affects the appellant’s substantial
rights, and (3) seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Alaniz v. Zamora-Quezada, 591 F.3d 761, 776 (5th Cir.
2009).
The district court erred in not advising Casas of the government’s right
to use any false statements against him in a prosecution for perjury. See Fed.
R. Crim. P. 11(b)(1)(A). However, Casas has not shown that this error affected
his substantial rights because he has not presented a reasonable probability
that, but for the district court’s error, he would not have pleaded guilty. See
United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
Additionally, we find groundless Casas’s argument that the district court
failed to ensure that his guilty plea was knowing and intelligent. Contrary to
Casas’s contentions, the district court ascertained Casas’s level of education,
determined that he had not been treated for mental health issues, and verified
that he had not consumed any alcohol or drugs within 48 hours prior to the
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No. 14-40365
rearraignment hearing. Casas has not shown plain error arising from the
rearraignment proceedings. See Vonn, 535 U.S. at 58–59.
Casas also contends that the district court erred under U.S.S.G.
§ 4A1.2(c)(1) in imposing one criminal history point for his Texas misdemeanor
conviction for criminal mischief, for which he received a sentence of nine days
in jail. He maintains that the offense was similar to the listed offense of
disorderly conduct, which is excluded from the criminal history calculation.
Because Casas objected, we review the district court’s interpretation of the
Sentencing Guidelines de novo. United States v. Reyes-Maya, 305 F.3d 362,
366 (5th Cir. 2002). Regardless whether the district court erred by assigning
one point for the Texas conviction, any error was harmless because it did not
affect the sentence imposed. See id. at 368. If one point is deducted from
Casas’s criminal history score of eight, his criminal history category and
guidelines range remain the same. See U.S.S.G. Ch. 5, Pt. A, Sentencing Table.
Consequently, any error in scoring the state conviction was harmless because
it did not affect the sentencing range. See United States v. Alcalde, 250 F.
App’x 627, 629 (5th Cir. 2007).
Finally, Casas contends that counsel rendered ineffective assistance at
sentencing by failing to request a downward departure based on the two-level
base offense level reduction for drug offenses then proposed for the 2014
Sentencing Guidelines. According to Casas, the Department of Justice had
instructed prosecutors not to object to such a request in pending cases. Casas
did not present any ineffective assistance claim to the district court and the
record is not sufficiently developed to permit review of this claim on direct
appeal. We therefore deny this claim without prejudice to collateral review.
See United States v. Isgar, 739 F.3d 829, 841 (5th Cir.), cert. denied, 135 S. Ct.
123 (2014).
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Accordingly, the judgment of the district court is AFFIRMED.
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