United States v. Baeza-Martinez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40195 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARTIN BAEZA-MARTINEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-98-CR-517-1 --------------------

August 27, 1999

Before KING, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

The Federal Public Defender (“FPD”), on behalf of Martin

Baeza-Martinez (“Baeza”), challenges Baeza’s guilty-plea

conviction for illegal reentry of a deported alien, 8 U.S.C.

§ 1326. The FPD contends that the district court erred by

failing to comply with Fed. R. Crim. P. 11(c)(1) during

rearraignment and that the failure requires that his conviction

be reversed.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-40195 -2-

The Government responds that the FPD has waived the argument

by failing to raise it before the district court or in any

similar case. As the Government concedes, however, claims of

Rule 11 violations may raised for the first time on appeal. See

United States v. Suarez, 155 F.3d 521, 524 (5th Cir. 1998)(Rule

11 challenge may be raised for the first time on appeal and is

reviewed for harmless error); United States v. Reyna, 130 F.3d

104, 107 & n.2 (5th Cir. 1997)(although the defendant did not

present his claim of noncompliance with Rule 11 in the district

court, it is not waived), cert. denied, 118 S. Ct. 1328 (1998).

Nevertheless, this appeal is frivolous. In reviewing

whether the district court complied with the dictates of Rule 11,

this court “conduct[s] a straightforward, two-question `harmless

error’ analysis: (1) Did the sentencing court in fact vary from

the procedures required by Rule 11, and (2) if so, did such

variance affect substantial rights of the defendant?” United

States v. Johnson, 1 F.3d 296, 298 (5th Cir. 1993) (en banc).

Although he acknowledges his argument is subject to harmless-

error review, counsel makes no argument that Baeza’s substantial

rights were affected; accordingly, there is no reversible error.

See id.

The appeal is without arguable merit and is therefore

frivolous. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983);

5th Cir. R. 42.2. Accordingly, it is DISMISSED. The

Government’s motion to consolidate is DENIED.

APPEAL DISMISSED; MOTION DENIED.