United States v. Gonzales

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20634 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ELIBODIO GONZALES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No.H-90-CR-278-1 -------------------- May 8, 2001

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Elibodio Gonzales appeals his guilty plea conviction for

conspiracy to export stolen motor vehicles, in violation of 18

U.S.C. §§ 371 and 2312, and attempting to export a stolen motor

vehicle, in violation of 18 U.S.C. § 553. Gonzales argues that

there was no sufficient factual basis to support his guilty plea

on either count and that the district court’s failure to advise

him fully of the effect of any supervised release is reversible

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-20634 -2-

Because Gonzales did not object in the district court to the

sufficiency of the factual basis for his guilty plea, this court

reviews for plain error. See United States v. Marek, 238 F.3d

310, 314 (5th Cir. 2001)(en banc). The facts presented by the

Government at the plea hearing support the district court’s

conclusion that the elements of each of the counts had been

demonstrated. See 18 U.S.C. §§ 371, 553, 2312; United States v.

Graves, 669 F.2d 964, 969 (5th Cir. 1982). Because the record

demonstrates that a sufficient factual basis exists, Gonzales has

failed to show any plain error. Id.; Fed. R. Crim. P. 11(f).

With regard to Gonzales’ argument that the district court

failed to advise him fully of the effect of any supervised

release, the record demonstrates that the district court did fail

so to inform Gonzales. However, this error is harmless, because

the district court’s failure in this regard did not affect any

substantial rights of Gonzales. See United States v. Johnson, 1

F.3d 296, 298 (5th Cir. 1993)(en banc); Fed. R. Crim. P. 11(h).

Because the maximum sentence explained by the district court

before Gonzales entered his guilty plea was more than the

sentence actually given to him, an explanation of the supervised

release term would not have been likely to affect Gonzales’

willingness to plead guilty. See Johnson, 1 F.3d at 302; United

States v. Hekimain, 975 F.2d 1098, 1101-03 (5th Cir. 1992). The

judgment of the district court is affirmed.

AFFIRMED.