United States v. Del Bosque

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 5, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40789
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO DEL BOSQUE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(M-02-CR-842-1)
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Alejandro Del Bosque appeals his
conviction on his guilty plea to a charge of possession with intent
to distribute approximately two kilograms of cocaine. The district
court sentenced Del Bosque to sixty months imprisonment and four
years supervised release.
Del Bosque asserts that the district court’s failure to inform
him at FED. R. CRIM. P. 11 colloquy that he was subject to a
statutory minimum sentence was plain error that affected his
*
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this opinion should not be published and is not precedent except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.
substantial rights. He argues that we should vacate his plea
because the error is of constitutional magnitude and rendered his
plea invalid.
Del Bosque’s Rule 11 challenge is raised for the first time on
appeal and is subject to review for plain error only. United
States v. Vonn, 535 U.S. 55, 59 (2002). Accordingly, he must show:
(1) an error, (2) that is clear and obvious, and (3) that affects
his substantial rights. United States v. Reyes, 300 F.3d 555, 558
(5th Cir. 2002). Even if these factors are established, however,
we will not correct the forfeited error unless, in our discretion,
we conclude that “the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id.Rule 11(b)(1)(I), FED. R. CRIM. P., requires the district court
to advise a defendant of the mandatory minimum penalty provided by
law. We have held previously that an omission during the FED. R.
CRIM. P. 11 colloquy of the applicable mandatory minimum sentence
may constitute reversible error. See United States v. Still, 102
F.3d 118, 122 (5th Cir. 1996); United States v. Watch, 7 F.3d 422,
429 (5th Cir. 1993). Such an omission does not, however, require
automatic reversal. See, e.g., United States v. Johnson, 1 F.3d
296, 303-04 (5th Cir. 1993) (en banc). The determination is a fact
sensitive inquiry. See Johnson, 1 F.3d at 303 n.31.
Under the circumstances presented in the instant case, the
district court’s omission does not warrant reversal. Del Bosque
has not shown that the error “seriously affects the fairness,
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integrity, or public reputation of judicial proceedings.” Reyes,
300 F.3d at 558. Accordingly, the judgment of the district court
is, in all respects,
AFFIRMED.
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