United States v. Carrizales-Cedillo ( 2000 )


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  •                    UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    ____________________
    No. 99-41206
    Summary Calendar
    ____________________
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    PRIMITIVO JUAN CARRIZALES-CEDILLO,
    also known as Juan Carrizales-Cedillo,
    Defendant-Appellant.
    _________________________________________________________________
    Appeal from the United States District Court
    for the Southern District of Texas
    (B-99-CR-224-1)
    _________________________________________________________________
    July 19, 2000
    Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
    PER CURIAM:*
    Primitivo Juan Carrizales-Cedillo contends that his guilty
    plea should be vacated because it was involuntarily entered.               The
    Government agrees, concluding the case should be remanded to permit
    Carrizales to enter a new plea.
    Because Carrizales raised this issue for the first time on
    appeal,   we   review   only   for    plain   error.     United   States    v.
    Angeles-Mascote, 
    206 F.3d 529
    , 530 (5th Cir. 2000). To demonstrate
    *
    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    this opinion should not be published and is not precedent except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.
    such error, he must show “clear” or “obvious” error that affects
    his substantial rights; if he does, we have discretion to correct
    a forfeited error that seriously affects the fairness, integrity,
    or public reputation of judicial proceedings.            E.g., United States
    v. Calverley, 
    37 F.3d 160
    , 162-64 (5th Cir. 1994) (en banc) (citing
    United States v. Olano, 
    507 U.S. 725
    , 730-35 (1993)).
    At the time Carrizales entered his guilty plea, this court had
    not yet determined whether the offense of illegal transportation of
    aliens is an aggravated felony for purposes of 
    8 U.S.C. § 1326
    (b).
    In the plea agreement, the parties stipulated that Carrizales'
    prior conviction for illegal transportation of aliens was not an
    aggravated    felony;    accordingly,       the   magistrate    judge     advised
    Carrizales at the rearraignment that he could be sentenced to a
    term of imprisonment of up to two years.
    However, the district court, having adopted the magistrate
    judge’s recommendation that it accept the guilty plea, sentenced
    Carrizales to a 46-month term of imprisonment, pursuant to this
    court's    intervening    decision     in    United    States   v.    Monjaras-
    Castaneda, 
    190 F.3d 326
    , 331 (5th Cir. 1999), cert. denied, 
    120 S. Ct. 1254
     (2000) (illegal transportation of aliens constitutes
    aggravated felony).
    The acceptance of Carrizales’ guilty plea involved a clear or
    obvious error that, obviously, affects his substantial rights and
    also    seriously   affects   the     fairness,       integrity,     or   public
    - 2 -
    reputation of judicial proceedings.   Accordingly, the judgment is
    VACATED and the case REMANDED for further proceedings.
    VACATED AND REMANDED
    - 3 -
    

Document Info

Docket Number: 99-41206

Filed Date: 7/20/2000

Precedential Status: Non-Precedential

Modified Date: 12/21/2014