United States v. Jorge De La Cruz-Trejo

Case: 12-40823 Document: 00512199130 Page: 1 Date Filed: 04/05/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 5, 2013
No. 12-40823
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JORGE ALBERTO DE LA CRUZ-TREJO, also known as Jose Ramirez-
Martinez, also known as Juan Antonio Rodriguez-Trejo
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:12-CR-188-1
Before SMITH, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Jorge Alberto De La Cruz-Trejo pleaded guilty to being unlawfully present
in the United States following removal subsequent to a felony conviction. The
district court sentenced him to a term of 40 months in prison to be followed by
three years of supervised release. De La Cruz-Trejo appeals, arguing that the
failure of the court to admonish him that his conviction would result in his
inability to seek naturalization rendered his plea involuntary.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40823 Document: 00512199130 Page: 2 Date Filed: 04/05/2013
No. 12-40823
Because De La Cruz-Trejo failed to raise this issue in the district court, we
review for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009).
De La Cruz-Trejo relies on Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473,
1482-87 (2010), which held that an attorney has an obligation under the Sixth
Amendment to advise the defendant whether a guilty plea carries the risk of
deportation. We have yet to address whether Padilla–which addressed counsel’s
duties under the Sixth Amendment rather than a district court’s obligation
under Rule 11 and the Due Process Clause–affects our established jurisprudence
that a district court is not required to advise a defendant of the immigration
consequences of a guilty plea. See United States v. Osiemi, 980 F.2d 344, 349
(5th Cir. 1993). No other circuit has held that Padilla imposes any such
obligation on the district court, and at least one circuit has held to the contrary.
United States v. Delgado-Ramos, 635 F.3d 1236, 1240-41 (9th Cir. 2011). Thus,
we conclude that any error there may have been is not clear or obvious. See
United States v. Garcia-Rodriguez, 415 F.3d 452, 456 (5th Cir. 2005).
In addition, De La Cruz-Trejo has failed to show an effect on his
substantial rights, an issue we analyze in light of the whole record. See United
States v. Vonn, 535 U.S. 55, 59 (2002). The magistrate judge advised De La
Cruz-Trejo that it was almost a “guarantee” that he would be deported and
would not be permitted to return to the United States legally. Further, the
presentence report expressly stated that De La Cruz-Trejo faced denial of
naturalization, yet De La Cruz-Trejo made no objection that the lack of such
information at rearraignment affected his plea. Given these facts, De La Cruz-
Trejo cannot show–and, in fact, does not assert–that there is a reasonable
probability that, but for the magistrate judge’s failure to state that his conviction
would preclude him from seeking naturalization, he would have gone to trial
instead of pleading guilty. See United States v. Dominguez Benitez, 542 U.S. 74,
83 (2004).
The judgment of the district court is AFFIRMED.
2