United States v. Humberto Solis, Jr.

Case: 09-41141 Document: 00511379044 Page: 1 Date Filed: 02/10/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 10, 2011
No. 09-41141
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
HUMBERTO SOLIS, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:08-CR-419-6
Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Humberto Solis, Jr., appeals his guilty plea conviction for conspiracy to
distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a),
(b)(1)(A), and 846. Solis argues for the first time on appeal that the district court
violated Federal Rule of Criminal Procedure 11 by failing to explain adequately
the nature of the offense of conviction. He also argues for the first time on
appeal that his guilty plea is invalid because the district court violated Rule 11
by failing to inform him of the 20-year statutory minimum sentence under
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-41141 Document: 00511379044 Page: 2 Date Filed: 02/10/2011
No. 09-41141
§ 841(b)(1)(A). Where, as here, a defendant has not objected to a Rule 11 error
in the district court, review is for plain error. See United States v. Vonn,
535 U.S. 55, 59 (2002). To show plain error, the appellant must show a forfeited
error that is clear or obvious and that affects his substantial rights. Puckett v.
United States, 129 S. Ct. 1423, 1429 (2009). If the appellant makes such a
showing, this court has the discretion to correct the error but only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Id..
In reviewing the effect of a Rule 11 violation, we may review the entire record,
not just the plea hearing transcript. Vonn, 535 U.S. at 59.
A district court is required by Rule 11 to address the defendant and inform
him of the nature of the charges. F ED. R. C RIM. P. 11(b)(1)(G). Here, Solis’s
indictment – which sufficiently set forth the requisite elements of the offense of
conviction – was read at his rearraignment, and he affirmed that he understood
the charge and had discussed it with his counsel. The Government also recited
at rearraignment the factual basis for Solis’s plea, which adequately alleged the
elements of the offense, and Solis admitted to those facts as true. Further, the
presentence report (PSR) contains statements by Solis demonstrating that he
understood the nature of his criminal conduct. Thus, the record supports that
Solis was sufficiently advised of the nature of his offense, and there was no error,
plain or otherwise. See Puckett, 129 S. Ct. at 1429; United States v. Lujano-
Perez, 274 F.3d 219, 225-26 (5th Cir. 2001).
Solis’s contention that the district court committed reversible error by not
properly advising him of the mandatory minimum sentence also is unavailing.
See F ED. R. C RIM. P. 11(b)(1)(I). The district court erroneously advised Solis at
rearraignment that he faced a mandatory minimum sentence of 10 years of
imprisonment when, in fact, his previous conviction of a felony drug offense
rendered him subject to a term of imprisonment of not less than 20 years or more
than life. § 841(b)(1)(A). The district court therefore committed obvious error.
See Puckett, 129 S. Ct. at 1429.
2
Case: 09-41141 Document: 00511379044 Page: 3 Date Filed: 02/10/2011
No. 09-41141
However, Solis has not established that this error affected his substantial
rights because he does not now assert that he would not have pleaded guilty but
for the erroneous admonishment. See United States v. Dominguez Benitez,
542 U.S. 74, 83 (2004). The record also confirms that Solis was aware of the
consequences of his plea and that the mandatory minimum sentence did not
establish or otherwise affect the minimum sentence that he faced. Furthermore,
the PSR properly set forth the mandatory minimum sentence, and Solis was
correctly advised at sentencing of the mandatory minimum penalty. His failure
to move to withdraw his plea after being properly informed of the mandatory
minimum sentence suggests that the court’s omission did not meaningfully affect
his decision to plead guilty. Thus, Solis cannot show a reasonable probability
that, but for the district court’s failure to advise him of the correct mandatory
minimum penalty, he would not have pleaded guilty. See Dominguez Benitez,
542 U.S. at 83. Accordingly, he has not shown reversible, plain error. See
Puckett, 129 S. Ct. at 1429.
In light of the foregoing, Solis’s conviction and sentence are AFFIRMED.
3