United States v. Castro-Alcala

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-41427 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NICANDRO CASTRO-ALCALA,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. 98-CR-424-1 - - - - - - - - - -

August 27, 1999

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

PER CURIAM:*

Nicandro Castro-Alcala (“Castro”) challenges his guilty-plea

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

§ 1326. Castro 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.

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’

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-41427 -2-

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 Castro’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.