United States v. Guerrero

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 24, 2003

Charles R. Fulbruge III Clerk No. 02-41337 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICARDO GUERRERO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-97-CR-187-2 --------------------

Before DeMOSS, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Ricardo Guerrero, federal prisoner # 76456-079, has appealed

the district court’s judgment revoking his supervised release and

sentencing him to a 24-month term of imprisonment. Guerrero

contends that the district court violated his right to due

process and FED. R. CRIM. P. 11 by entering a plea of “not true”

on his behalf. Guerrero did not object in the district court to

the court’s failure to follow the procedures in Boykin v.

Alabama, 395 U.S. 238 (1969), and FED. R. CRIM. P. 11.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-41337 -2-

Accordingly, we review any error on the part of the district

court in failing to follow those procedures for plain error.

See United States v. Calverley, 37 F.3d 160, 162–64 (5th Cir.

1994) (en banc). This court has held that Boykin and Rule 11 do

not apply to probation revocation proceedings. United States v.

Johns, 625 F.2d 1175, 1176 (5th Cir. 1980). The court has not

yet determined whether to extend this rule to proceedings

involving revocation of supervised release. Because the court

has not yet resolved this question, any error on the part of the

district court could not have been clear or obvious.

See Calverley, 37 F.3d at 162–64.

Guerrero’s due process arguments are based upon the

frivolous contention that he was not bound by the conditions of

his supervised release or by the laws of the United States. By

construing Guerrero’s comments at the revocation hearing as a

denial of the alleged violations, the district court merely put

the Government to its burden of presenting evidence showing that

the violations had occurred. See United States v. Grandlund,

71 F.3d 507, 509–10 (5th Cir. 1995); see also FED. R. CRIM. P.

32.1(b)(2)(C). Because Guerrero’s appeal is without arguable

merit, it is dismissed as frivolous. See Howard v. King, 707

F.2d 215, 219-20 (5th Cir. 1983); see also 5TH CIR. R. 42.2.

APPEAL DISMISSED.