United States v. Silvestre Martinez

Case: 12-40596 Document: 00512096885 Page: 1 Date Filed: 12/28/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 28, 2012
No. 12-40596
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SILVESTRE MARTINEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:11-CR-679-2
Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Silvestre Martinez appeals his conviction for
possession with intent to distribute cocaine. He argues pursuant to Padilla v.
Kentucky, 130 S. Ct. 1473 (2010), that the district court committed plain error
when it failed to admonish him during the plea colloquy that he would be denied
naturalization as a result of his guilty plea. We note at the outset that
Martinez’s appellate waiver provision does not bar the instant appeal, which
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40596 Document: 00512096885 Page: 2 Date Filed: 12/28/2012
No. 12-40596
challenges the voluntariness of his plea. See United States v. White, 307 F.3d
336, 343-44 (5th Cir. 2002).
As a guilty plea involves the waiver of constitutional rights it must be
voluntary, knowing, and intelligent. Brady v. United States, 397 U.S. 742, 748
(1970). Martinez raised no objection to the allegedly inadequate admonishment;
thus, review is for plain error. See United States v. Vonn, 535 U.S. 55, 74 (2002).
To establish plain error, the defendant must show a forfeited error that is clear
or obvious and that affects his substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009). If he makes such a showing, we have the discretion to
correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.We need not reach the issue whether Padilla affects a district court’s
guilty plea admonishments because the plea agreement and the transcripts of
his initial appearance and rearraignment collectively disclose that Martinez, a
lawful permanent resident, was fully apprised that a guilty plea could result in
his deportation, exclusion from the United States, or the denial of naturalization.
See United States v. Trejo, 610 F.3d 308, 317 (5th Cir. 2010). As such, any
perceived error on the part of the district court during the plea colloquy did not
affect his substantial rights, i.e., it is not reasonably probable that but for the
alleged error Martinez would not have pleaded guilty. See United States v.
Castro-Trevino, 464 F.3d 536, 541 (5th Cir. 2006). He cannot demonstrate
reversible error under the plain error standard.
AFFIRMED.
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