United States v. Chavez-Avila

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________

No. 95-50089 Conference Calendar __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAIME MUNOZ,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. EP-94-CR-98-2 - - - - - - - - - -

* * * * * * * * * * * * * * * * * * * *

__________________

No. 95-50090 Conference Calendar __________________

ARTURO CHAVEZ-AVILA,

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. EP-94-CR-98-3 - - - - - - - - - - August 22, 1995 No. 95-50089 c/w 95-50090 -2-

Before KING, JOLLY, and WIENER, Circuit Judges.

PER CURIAM:*

In examining whether the guilty pleas entered by appellants

Jaime Munoz, No. 95-50089, and Arturo Chavez-Avila, No. 95-50090,

were voluntarily made in conformity with Fed. R. Crim. P. 11,

this court utilizes a 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).

Appellants entered their guilty pleas with the understanding

that they faced a minimum ten-year term of imprisonment and three

years of supervised release and that the maximum term was life

imprisonment under 18 U.S.C. § 841(b)(1(A). The court's

understatement of the supervised release term by two years was a

relatively small fraction of the maximum term of imprisonment

(life) that they each faced, and it did not materially differ

from the length of imprisonment actually imposed. The appellants

showed no surprise and raised no objection to the term of

supervised release in the presentence report. See United States

v. Bachynsky, 934 F.2d 1349, 1360 (5th Cir.), cert. denied, 502

U.S. 951 (1991). Moreover, neither appellant asserts that the

mistaken statement of the length of supervised release term

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published. No. 95-50089 c/w 95-50090 -3-

affected their decision to plead guilty. See United States v.

Thomas, 13 F.3d 151, 152 (5th Cir. 1994).

Appellants also challenge the fine imposed by the district

court. The record of appellants' Rule 11 hearing establishes

that appellants knowingly and voluntarily waived their statutory

right to appeal their respective sentences. United States v.

Melancon, 972 F.2d 566, 568 (5th Cir. 1992). We will hold

appellants to the bargain to which they agreed. See United

States v. Portillo, 18 F.3d 290, 292-93 (5th Cir.), cert. denied,

115 S. Ct. 244 (1994).

Accordingly, the conviction and sentence of appellants Munoz

and Chavez-Avila are AFFIRMED.