United States v. Shannon ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-10349
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY DON SHANNON,
Defendant-Appellant.
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Appeal from the United States District Court for the
Northern District of Texas
(3:96-CR-374-T)
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November 3, 1995
Before JOLLY, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
Shannon argues that his guilty pleas were not knowingly or
voluntarily entered. He contends that the district court failed to
comply with the dictates of Fed. R. Crim. P. 11, in that the
district court failed to advise Shannon that he had a right to
plead not guilty, failed to ask Shannon whether he was under the
influence of any medication or narcotics, failed to address the
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the court has determined that this opinion
should not be published.
elements of the continuing criminal enterprise charge, and failed
to inform Shannon that he was ineligible for parole on the
continuing criminal enterprise charge.
Shannon first contends that the district court failed to
comply with Rule 11 because the court did not inform him that he
had a right to plead not guilty. Although the district court did
not directly state to Shannon that he had a right to plead not
guilty, the court advised Shannon that "if" he "proceed[ed] on a
plea of not guilty" and had a trial, the government would have the
burden of proving his guilt beyond a reasonable doubt, thus
impliedly stating that Shannon had a right to plead not guilty.
Further, Shannon was necessarily aware of his right to plead not
guilty, as he had previously pleaded not guilty to one original
indictment and two superseding indictments at three separate
arraignments.
Further, with regard to Shannon's argument that his guilty
plea was not voluntary because the district court failed to inquire
whether he was under the influence of narcotics, the district court
asked Shannon whether he was under the care of a doctor for any
ailment, how long he had been under the care of a psychiatrist,
whether his psychiatrist was aware of his re-arraignment, and
whether his psychiatrist had any objections to the proceeding. The
district court also questioned Shannon's defense counsel, who
stated that there had been no indication that Shannon was not
competent to enter a plea in the case, and that he had discussed
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with Shannon the nature of the proceedings and the consequences of
entering a guilty plea. The district court determined that Shannon
was competent to enter a plea and that he understood the nature of
the proceedings. Although he informed the court at sentencing that
he had a "drug problem," Shannon gave the court no indication when
he entered his plea that he was under the influence of narcotics,
nor does he allege now that he was under the influence of narcotics
at the time of his re-arraignment.
Shannon also contends that the district court failed to
address the elements of the continuing criminal enterprise charge
and failed to inform him that he was ineligible for parole on the
continuing criminal enterprise charge. Shannon stated, however,
that he had received a copy of both the superseding indictment and
the information, that he had gone over the documents with his
attorney, that he understood the charges in each of the documents,
and he waived the reading of the information and the indictment in
open court. The government then read the factual resume in open
court, and Shannon stated that he agreed with the factual resume.
Further, we have held, as Shannon concedes in his brief, that a
defendant need not be advised of his ineligibility for parole prior
to the district court's acceptance of his guilty plea. See United
States v. Posner, 865 F.2d 654, 659-60 (5th Cir. 1989).
The district court's minimal variance from Rule 11 was thus
harmless error. See Johnson, 1 F.3d at 298. The court's errors
did not affect Shannon's "substantial rights" as Shannon's
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"knowledge and comprehension of the full and correct information"
would not have been "likely to affect his willingness to plead
guilty." Id. at 298, 302.
A F F I R M E D.
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