United States v. Leobardo Villarreal ( 2010 )

Case: 09-40606 Document: 00511098011 Page: 1 Date Filed: 05/03/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 3, 2010
No. 09-40606
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LEOBARDO VILLARREAL,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:06-CR-220-1
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Leobardo Villarreal appeals his guilty-plea conviction for escape from
federal custody in violation of 18 U.S.C. § 751(a). He argues that the indictment
was flawed: that the lack of a signature violated his constitutional rights, that
it was duplicitous, and that the facts did not support the allegations. He also
takes issue with the rearraignment at which he pleaded guilty, urging that the
district court failed in multiple ways to comply with Federal Rule of Criminal
Procedure 11.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40606 Document: 00511098011 Page: 2 Date Filed: 05/03/2010
No. 09-40606
First, as to the alleged problems with the indictment, the grand jury’s
foreperson did sign it. Villarreal’s guilty plea waived his right to challenge the
indictment as duplicitous.1 By pleading guilty, he also waived his right to
challenge any factual defects in the indictment,2 and, in any event, a review of
the record shows the argument to have no merit.
Second, because Villarreal did not before the district court raise his
challenges to the guilty plea hearing, we review for plain error.3 To secure a
reversal for an unpreserved Rule 11 failing, Villarreal must “show a reasonable
probability that, but for the error, he would not have entered the plea.” 4 After
reviewing the record, we are not persuaded that Villarreal has made the
necessary showing, and the facts support the conviction.
AFFIRMED.
1
United States v. Lampazianie, 251 F.3d 519, 525 (5th Cir. 2001).
2
United States v. Daughenbaugh, 549 F.3d 1010, 1012 (5th Cir. 2008) (explaining that
a guilty plea waives all nonjurisdictional defects in the prior proceedings); see also United
States v. Cotton, 535 U.S. 625, 630–31 (2002) (ruling that indictment defects are not
jurisdictional problems).
3
See United States v. Vonn, 535 U.S. 55, 58–59 (2002).
4
United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004).