United States v. Brooks

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-21313 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VERNON EARL BROOKS,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-547-ALL

September 5, 2002

Before GARWOOD, WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

Vernon Earl Brooks has appealed his guilty-plea conviction and

sentence for possession of a firearm as a convicted felon, in

violation of 18 U.S.C. § 922(g)(1). We affirm.

Brooks contends that he is entitled to replead because the

district court failed to advise him of the length of the prison

term he could receive if the court were to revoke his term of

* 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 R.47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. supervised release, although it did inform him that on such

revocation the court could “send you back to prison.”1

We apply a plain error analysis because the said omission was

not objected to in the district court. United States v. Vonn, 122

S.Ct. 1043, 1046 (2002), United States v. Reyes, ___ F.3d ___ (5th

Cir. June 12, 2002, No. 01-50737), 2002 WL 1290864. Under this

analysis, Brooks has the burden to show (1) there is an error, (2)

that is clear and obvious, and (3) that affects his substantial

rights. United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001).

If these factors are established, the decision to correct the

forfeited error still lies within this court’s sound discretion,

which will not be exercised unless the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.

Id. To evaluate the effect of any error on substantial rights, we

determine whether “the district court’s flawed compliance with . .

. Rule 11 . . . may reasonably be viewed as having been a material

factor affecting [the defendant]’s decision to plead guilty.”

United States v. Johnson, 1 F.3d 296, 302 (5th Cir. 1993). “[W]e

focus on whether the defendant’s knowledge and comprehension of the

full and correct information would have been likely to affect his

willingness to plead guilty.” United States v. Bond, 87 F.3d 695

(5th Cir. 1996). In making this determination, we may consult the

1 The court also asked defense counsel if he thought further advice of rights under Rule 11 was required, and counsel responded in the negative.

2 whole record on appeal. Vonn, 122 S.Ct. at 1046; Johnson, 1 F.3d

at 302.

In making this determination, the court in Bond considered

factors such as the defendant’s failure to allege that full

compliance with Rule 11 would have affected his decision to plead

guilty, defendant’s extensive criminal history, and that the

evidence that he had committed the underlying offense was strong.

Bond, 87 F.3d at 702. All of these factors apply with equal force

to Brooks. While Brooks’ brief alleged he was “prejudiced” by the

omission of a judicial admonishment as to the exact amount of

prison time that would result from revocation of supervised

release, it is not explicitly alleged that he would have pleaded

differently had this admonishment been given. Defendant’s criminal

history is lengthy and the sufficiency of the evidence he committed

the underlying offense has not been challenged. Finally, in

comparison to the district court’s alleged failure to inform Bond

of the statutory minimum for the offense he had committed which was

not deemed to affect his substantial rights, the error here is more

attenuated, as a longer sentence than Brooks was advised of will

only materialize if he violates the terms of supervised release, a

matter entirely within his control. As such, this error appears no

more harmful than the error in Bond, and arguably less so.

Therefore, although the district court committed error, it most

likely did not affect Brooks’ substantial rights, and we conclude

3 that the error is not one which seriously affects the fairness,

integrity or public reputation of judicial proceedings.

Brooks contends that the district court reversibly erred in

sentencing him under the guidelines, by departing upward five

offense levels pursuant to U.S.S.G. § 4A1.3. There was no abuse of

the district court’s wide discretion, however, because the court

gave acceptable reasons for departing and the extent of the

departure is reasonable. See United States v. Route, 104 F.3d 59,

64 (5th Cir. 1997); United States v. Rosogie, 21 F.3d 632, 634 (5th

Cir. 1994).

Brooks contends that the district court abused its discretion

by including a provision in the written judgment directing him to

pay the expense of the drug-treatment program that the court orally

imposed at sentencing. In the alternative, Brooks contends, the

district court impermissibly delegated to the probation office its

authority to set the amount and timing of payments for the court-

ordered drug/alcohol detection and treatment services. This court

recently rejected such claims in United States v. Warden, 291 F.3d

363 (5th Cir. 2002).

Brooks contends that the district court committed plain error

by accepting his guilty plea because the factual basis presented by

the Government failed to establish the interstate-commerce element

of 18 U.S.C. § 922(g)(1). He concedes that this contention is

foreclosed by United States v. Daughtery, 264 F.3d 513 (5th Cir.

4 2001), cert. denied, 122 S.Ct. 1113 (2002), and he has raised it

only to preserve it for further review.

The judgment of the district court is hereby

AFFIRMED.