United States v. Jose Zuniga-Hernandez

Case: 15-40353 Document: 00514137121 Page: 1 Date Filed: 08/30/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-40353 FILED
Summary Calendar August 30, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE LUIS ZUNIGA-HERNANDEZ, also known as Wicho, also known as
Commandante Wicho, also known as XW,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:13-CR-623-1
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Jose Luis Zuniga-Hernandez appeals his guilty plea convictions for
conspiring to import into the United States five kilograms or more of cocaine
and 1000 kilograms or more of marijuana. He argues that his guilty plea was
not knowing and voluntary because (1) he was misadvised regarding both the
mandatory minimum term, and the maximum term, of supervised release to
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-40353
which he was subject, (2) he was misadvised that the Government would
recommend that he receive a reduction for acceptance of responsibility, and (3)
he believed that his imprisonment guidelines range would be less than life.
Despite the waiver contained in Zuniga-Hernandez’s plea agreement, he
retains the right to challenge the plea agreement, and the plea itself, as
unknowing or involuntary. See United States v. Carreon-Ibarra, 673 F.3d 358,
362 n.3 (5th Cir. 2012); United States v. Brown, 328 F.3d 787, 789-90 (5th Cir.
2003).
“Rule 11 ensures that a guilty plea is knowing and voluntary by
requiring the district court to follow certain procedures before accepting such
a plea.” Brown, 328 F.3d at 789 (internal quotation marks and citation
omitted). Where, as here, a defendant does not object to Rule 11 errors in the
district court, we review for plain error and “may consult the whole record
when considering the effect of any error on substantial rights.” Id. (internal
quotation marks and citation omitted). To show plain error, the defendant
must show that the error was clear or obvious and affects his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a
showing, this court has the discretion to correct the error but only if it
“‘seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.’” Id. (alteration in original) (quoting United States v. Olano, 507
U.S. 725, 736 (1993)). To show that Rule 11 error affected a defendant’s
substantial rights, he “must show a reasonable probability that, but for the
error, he would not have entered the plea.” United States v. Dominguez
Benitez, 542 U.S. 74, 76, 81-83 (2004).
Although the district court committed clear error by failing to advise
Zuniga-Hernandez correctly of the maximum term of supervised release to
which he was subject, see Federal Rule of Criminal Procedure 11(b)(1)(H),
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Zuniga-Hernandez fails to show that his substantial rights were affected since
the presentence report accurately advised him the maximum term of
supervised release was life, and he neither objected nor sought to withdraw his
guilty plea after learning of the correct maximum. See Puckett, 556 U.S. at
135; United States v. Vasquez-Bernal, 197 F.3d 169, 171 (5th Cir. 1999)
(holding that district court’s failure to inform defendant of punishment range
at rearraignment did not affect his substantial rights when range was correctly
set forth in presentence report). With regard to his remaining claims, all of
which are conclusory, Zuniga-Hernandez fails to show any violation of Rule 11,
much less plain error. See Puckett, 556 U.S. at 135.
AFFIRMED.
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