United States v. Carrizales-Cedillo ( 2000 )

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this opinion should not be published and is not precedent except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
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reputation of judicial proceedings. Accordingly, the judgment is
VACATED and the case REMANDED for further proceedings.
VACATED AND REMANDED
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