United States v. Smith

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-31079
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRANDON SMITH, also known
as Taburk,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 00-CR-319-3-D
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June 18, 2002
Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Brandon Smith argues that the district court’s failure to
advise him of his right to trial by jury in accord with FED. R.
CRIM. P. 11 was reversible error. The Government concedes that
the district court did not expressly advise Smith of his right to
a jury trial during the rearraignment proceedings. However,
Smith acknowledges that he did not object to the district court’s
omission during the rearraignment 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that this opinion should not be published and is not precedent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.
No. 01-31079
-2-
A defendant who fails to object in the district court to a
FED. R. CRIM. P. 11 error bears the burden of demonstrating plain
error on appeal. United States v. Vonn, 122 S. Ct. 1043, 1046
(2002). Plain error requires Smith to show “(1) an error;
(2) that is clear or plain; (3) that affects [his] substantial
rights; and (4) that seriously affects the fairness, integrity or
public reputation of judicial proceedings.” United States v.
Vasquez, 216 F.3d 456, 459 (5th Cir.), cert. denied, 531 U.S. 972(2000).
The reviewing court may consider portions of the record
other than the FED. R. CRIM. P. 11 colloquy in determining the
effect of any error on substantial rights. Vonn, 122 S. Ct. at
1054. Smith was advised by the magistrate judge of his right to
a jury trial at his initial appearance. Smith has not asserted
that he was unaware of his right to a jury trial or that the
omission of the word “jury” likely affected his decision to plead
guilty.
The record does not reflect that the district court’s
omission affected Smith’s decision to plead guilty. Accordingly,
Smith’s substantial rights were not affected by the omission.
Nor does the record reflect that the error had any serious effect
on the integrity of the judicial proceeding. Vonn, 122 S. Ct. at
1048. Thus, the FED. R. CRIM. P. 11 violation does not rise to
the level of plain error.
Smith’s conviction and sentence are AFFIRMED.