United States v. Bernardino Saucedo-Rios

Case: 09-50987 Document: 00511578348 Page: 1 Date Filed: 08/22/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 22, 2011
No. 09-50987
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BERNARDINO SAUCEDO-RIOS,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:09-CR-136-1
Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
Bernardino Saucedo-Rios appeals his guilty plea conviction of illegal
reentry following deportation in violation of 8 U.S.C. § 1326(a). He argues that
the district court violated Rule 11(b)(1)(D) of the Federal Rules of Criminal
Procedure when it failed to inform him that he had “the right to be represented
by counsel--and if necessary have the court appoint counsel--at trial and at every
other stage of the proceeding.”
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-50987 Document: 00511578348 Page: 2 Date Filed: 08/22/2011
No. 09-50987
Because Saucedo-Rios did not object to the district court’s failure to comply
with Rule 11, we review for plain error, which requires a showing of clear or
obvious error that affects substantial rights. See United States v. Vonn, 535 U.S.
55, 58-59 (2002). In evaluating whether an alleged Rule 11 error affects a
defendant’s substantial rights, this court looks to whether there exists a
“reasonable probability that, but for the error, he would not have entered the
plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
Saucedo-Rios’s argument is unavailing. The rearraignment transcript
reflects that the district court told Saucedo-Rios that by pleading guilty he was
giving up “the right to have the attorney present at trial and with you in any
subsequent hearings or proceedings” and that Saucedo-Rios confirmed that he
understood his rights. Thus, although the court’s phrasing may have constituted
a minor deviation from the text of Rule11(b)(1)(D), it did not constitute a
violation of Rule 11. Furthermore, although the district court failed to inform
Saucedo that he had the right to court-appointed counsel, Saucedo was, in fact,
represented by court-appointed counsel throughout the proceedings in the
district court. See United States v. Sanchez, 650 F.2d 745, 748 (5th Cir. 1981)
(holding that Rule 11 “limits the necessity for such a charge to situations where
the defendant is not represented by an attorney at the plea proceeding”).
Finally, there is simply no indication in the record that there exists a
“reasonable probability that, but for the error, [Saucedo] would not have entered
the plea.” Dominguez Benitez, 542 U.S. at 83.
Accordingly, the judgment of the district court is AFFIRMED.
2