IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT _______________
m 99-41432 _______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARIO ALBERTO HERNANDEZ-HERNANDEZ,
Defendant-Appellant.
_________________________
Appeal from the United States District Court for the Southern District of Texas (L-99-CR-648-1) _________________________
November 10, 2000
Before JOLLY, JONES, and SMITH, dez”), a citizen of Mexico, pleaded guilty to Circuit Judges. illegal reentry into the United States following deportation in violation of 8 U.S.C. § 1326. JERRY E. SMITH, Circuit Judge:* He and his counsel signed a plea agreement admitting his guilt. Hernandez appeals, Mario Hernandez-Hernandez (“Hernan- claiming that his guilty plea was not voluntary, that the district court violated the requirements of FED. R. CRIM. P. 11, and that the court * failed to allow him to make a statement in Pursuant to 5TH CIR. R. 47.5, the court has mitigation of his sentence as required by FED. determined that this opinion should not be R. CRIM. P. 32(c). We conclude that published and is not precedent except under the limited circumstances set forth in 5TH CIR. Hernandez intended to plead guilty and that R. 47.5.4. the failure to comply with rule 11 is harmless error but that, as the government concedes, relation to the facts.” McCarthy v. United the rule 32(c) violations require us to vacate States, 394 U.S. 459, 466 (1969)(finding such the sentence and remand it. understanding an essential component of a knowing and voluntary plea). I. Hernandez asserts he did not intend to The existence of a written plea agreement plead guilty and that the court neither entered and the fact that Hernandez did not assert ei- a guilty plea nor explicitly accepted his plea. ther (a) that he is innocent or (b) that he would The record shows, however, that the district not have waived his right to trial had he court accepted Hernandez’s plea by entering a received the benefit of the rule 11 warnings judgment of conviction on December 3, 1999. lend credence to the district court’s finding We review the acceptance of a guilty plea for that Hernandez intentionally pleaded guilty. clear error, United States v. Rivas, 85 F.3d On appeal, however, Hernandez contests the 193, 194 (5th Cir. 1996), and the voluntariness validity of his plea because he never affirmed of the plea de novo, United States v. Reyna, in open court that he would plead guilty of his 130 F.3d 104, 111 (5th Cir. 1997). own free will, that he understood the range of punishment, or that he understood that he A defendant must plead guilty knowingly waived his right to a jury trial.3 and voluntarily.2 The guilty plea “is itself a conviction; nothing remains but to give Hernandez, however, signed a written plea judgment and determine sentence.” Boykin v. agreement containing this information and Alabama, 395 U.S. 238, 242 (1969). If the delineating the range of punishment and the defendant does not affirmatively show that he specific rights he would have at trial that he intelligently and voluntarily intends to plead waived by signing the agreement. The guilty, the conviction cannot stand. See id. agreement additionally states that “[t]he defendant acknowledges that no threats have The district court indisputably violated the been made against the defendant and that the rule 11 procedures designed to act as a defendant is pleading guilty freely and prophylactic against precisely this type of voluntarily because the defendant is guilty.” challenge to a conviction. Regardless of the procedural errors, however, the record On the strength of this language, we contains a written plea agreement signed by conclude that Hernandez pleaded guilty Hernandez, his counsel, and the prosecutor. voluntarily. With this plea agreement before Hernandez affirmed in court that he it, the court did not clearly err either in understood the agreement and its contents. determining that Hernandez intended to enter Even though the court did not instruct him in a guilty plea or in accepting that plea.4 open court as per rule 11, this fact in and of itself does not indicate that Hernandez did not “possess[] an understanding of the law in 3 Cf. United States v. Williams, 20 F.3d 125, 133 (5th Cir. 1994). 2 4 McChesney v. Henderson, 482 F.2d 1101, Cf. United States v. Grandia, 18 F.3d 184, 1106 (5th Cir. 1973) (citing Brady v. United 187 (2d Cir. 1994) (concluding that failure to ask States, 397 U.S. 742 (1970)). (continued...)
2 II. prosecutor’s sentencing recommendation. Hernandez argues that the failure to comply FED. R. CRIM. P. 11(e)(2). Finally, the court with the requirements of rule 11 rendered his must make sufficient inquiry to establish a guilty plea void. We disagree. Even though satisfactory factual basis for the plea. FED. R. the court was lax in accepting the plea, these CRIM. P. 11(f). “variances from the procedures required” by rule 11 do not affect Hernandez’s substantial A conviction must be vacated when the rights; thus, we disregard them. See FED. R. court fails to follow the procedures prescribed CRIM. P. 11(h). by rule 11 and those variances affect substantive rights. United States v. Watch, 7 We review compliance with rule 11 F.3d 422, 428-29 (5th Cir. 1993). The parties de novo. United States v. Myers, 150 F.3d agree that the court failed to follow the 459, 461 (5th Cir. 1998) (citing United States procedures required by rule 11. Thus, we v. Scott, 987 F.2d 261, 264 (5th Cir. 1993)). must decide whether those failures affected A defendant may assert rule 11 violations on Hernandez’s substantial rights. See rule appeal regardless of whether he raised the is- 11(h).5 Because they did not, we disregard sue in the district court. United States v. them. Suarez, 155 F.3d 521, 524 (5th Cir. 1998). A variance from rule 11 affects substantial Rule 11(c) requires the court to address the rights if “the defendant’s knowledge and com- defendant personally to determine that he un- prehension of the full and correct information derstands and to inform him of certain facts, would have been likely to affect his willingness including the nature of the charge, the to plead guilty.” Johnson, 1 F.3d at 302. penalties involved, the right to an attorney, the Because the plea agreement contained all the right to a jury trial and the rights attendant to information the court must impart under rule trial, and the waiver of those rights effected by 11, the court’s actions did not affect Hernan- the guilty plea. FED. R. CRIM. P. 11(c)(1)-(5). dez’s decision to plead guilty. The court must “determin[e] that the plea is voluntary and not the result of force or threats Hernandez answered affirmatively when or of promises apart from a plea agreement.” asked, during the plea hearing, whether he un- FED. R. CRIM. P. 11(d). If the defendant and derstood the agreement.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT _______________
m 99-41432 _______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARIO ALBERTO HERNANDEZ-HERNANDEZ,
Defendant-Appellant.
_________________________
Appeal from the United States District Court for the Southern District of Texas (L-99-CR-648-1) _________________________
November 10, 2000
Before JOLLY, JONES, and SMITH, dez”), a citizen of Mexico, pleaded guilty to Circuit Judges. illegal reentry into the United States following deportation in violation of 8 U.S.C. § 1326. JERRY E. SMITH, Circuit Judge:* He and his counsel signed a plea agreement admitting his guilt. Hernandez appeals, Mario Hernandez-Hernandez (“Hernan- claiming that his guilty plea was not voluntary, that the district court violated the requirements of FED. R. CRIM. P. 11, and that the court * failed to allow him to make a statement in Pursuant to 5TH CIR. R. 47.5, the court has mitigation of his sentence as required by FED. determined that this opinion should not be R. CRIM. P. 32(c). We conclude that published and is not precedent except under the limited circumstances set forth in 5TH CIR. Hernandez intended to plead guilty and that R. 47.5.4. the failure to comply with rule 11 is harmless error but that, as the government concedes, relation to the facts.” McCarthy v. United the rule 32(c) violations require us to vacate States, 394 U.S. 459, 466 (1969)(finding such the sentence and remand it. understanding an essential component of a knowing and voluntary plea). I. Hernandez asserts he did not intend to The existence of a written plea agreement plead guilty and that the court neither entered and the fact that Hernandez did not assert ei- a guilty plea nor explicitly accepted his plea. ther (a) that he is innocent or (b) that he would The record shows, however, that the district not have waived his right to trial had he court accepted Hernandez’s plea by entering a received the benefit of the rule 11 warnings judgment of conviction on December 3, 1999. lend credence to the district court’s finding We review the acceptance of a guilty plea for that Hernandez intentionally pleaded guilty. clear error, United States v. Rivas, 85 F.3d On appeal, however, Hernandez contests the 193, 194 (5th Cir. 1996), and the voluntariness validity of his plea because he never affirmed of the plea de novo, United States v. Reyna, in open court that he would plead guilty of his 130 F.3d 104, 111 (5th Cir. 1997). own free will, that he understood the range of punishment, or that he understood that he A defendant must plead guilty knowingly waived his right to a jury trial.3 and voluntarily.2 The guilty plea “is itself a conviction; nothing remains but to give Hernandez, however, signed a written plea judgment and determine sentence.” Boykin v. agreement containing this information and Alabama, 395 U.S. 238, 242 (1969). If the delineating the range of punishment and the defendant does not affirmatively show that he specific rights he would have at trial that he intelligently and voluntarily intends to plead waived by signing the agreement. The guilty, the conviction cannot stand. See id. agreement additionally states that “[t]he defendant acknowledges that no threats have The district court indisputably violated the been made against the defendant and that the rule 11 procedures designed to act as a defendant is pleading guilty freely and prophylactic against precisely this type of voluntarily because the defendant is guilty.” challenge to a conviction. Regardless of the procedural errors, however, the record On the strength of this language, we contains a written plea agreement signed by conclude that Hernandez pleaded guilty Hernandez, his counsel, and the prosecutor. voluntarily. With this plea agreement before Hernandez affirmed in court that he it, the court did not clearly err either in understood the agreement and its contents. determining that Hernandez intended to enter Even though the court did not instruct him in a guilty plea or in accepting that plea.4 open court as per rule 11, this fact in and of itself does not indicate that Hernandez did not “possess[] an understanding of the law in 3 Cf. United States v. Williams, 20 F.3d 125, 133 (5th Cir. 1994). 2 4 McChesney v. Henderson, 482 F.2d 1101, Cf. United States v. Grandia, 18 F.3d 184, 1106 (5th Cir. 1973) (citing Brady v. United 187 (2d Cir. 1994) (concluding that failure to ask States, 397 U.S. 742 (1970)). (continued...)
2 II. prosecutor’s sentencing recommendation. Hernandez argues that the failure to comply FED. R. CRIM. P. 11(e)(2). Finally, the court with the requirements of rule 11 rendered his must make sufficient inquiry to establish a guilty plea void. We disagree. Even though satisfactory factual basis for the plea. FED. R. the court was lax in accepting the plea, these CRIM. P. 11(f). “variances from the procedures required” by rule 11 do not affect Hernandez’s substantial A conviction must be vacated when the rights; thus, we disregard them. See FED. R. court fails to follow the procedures prescribed CRIM. P. 11(h). by rule 11 and those variances affect substantive rights. United States v. Watch, 7 We review compliance with rule 11 F.3d 422, 428-29 (5th Cir. 1993). The parties de novo. United States v. Myers, 150 F.3d agree that the court failed to follow the 459, 461 (5th Cir. 1998) (citing United States procedures required by rule 11. Thus, we v. Scott, 987 F.2d 261, 264 (5th Cir. 1993)). must decide whether those failures affected A defendant may assert rule 11 violations on Hernandez’s substantial rights. See rule appeal regardless of whether he raised the is- 11(h).5 Because they did not, we disregard sue in the district court. United States v. them. Suarez, 155 F.3d 521, 524 (5th Cir. 1998). A variance from rule 11 affects substantial Rule 11(c) requires the court to address the rights if “the defendant’s knowledge and com- defendant personally to determine that he un- prehension of the full and correct information derstands and to inform him of certain facts, would have been likely to affect his willingness including the nature of the charge, the to plead guilty.” Johnson, 1 F.3d at 302. penalties involved, the right to an attorney, the Because the plea agreement contained all the right to a jury trial and the rights attendant to information the court must impart under rule trial, and the waiver of those rights effected by 11, the court’s actions did not affect Hernan- the guilty plea. FED. R. CRIM. P. 11(c)(1)-(5). dez’s decision to plead guilty. The court must “determin[e] that the plea is voluntary and not the result of force or threats Hernandez answered affirmatively when or of promises apart from a plea agreement.” asked, during the plea hearing, whether he un- FED. R. CRIM. P. 11(d). If the defendant and derstood the agreement. The written the government have reached a written plea agreement independently informed him, before agreement, the court must advise the he appeared in court, of each of the defendant that he has no right to withdraw his procedures required by rule 11. Thus, the guilty plea if the court does not accept the court’s actions did not materially affect Hernandez’s understanding of the proceedings
4 (...continued) defendant “How do you plead?” in open court is not fatal if it is evident from the facts and 5 circumstances that defendant intended to plead See also United States v. Henry, 113 F.3d guilty, affirmatively admitted his guilt, stated that 37, 40 (5th Cir. 1997) (citing United States v. he entered plea voluntarily, and fully believed he Johnson, 1 F.3d 296, 297 (5th Cir. 1993) was pleading guilty). (en banc)).
3 or willingness to plead.6
III. The government agrees with Hernandez’s contention that we must vacate and remand his sentence because the court failed to comply with FED. R. CRIM. P. 32(c)(3)(C), which requires it to “address the defendant personally and determine whether the defendant wished to make a statement and to present any information in mitigation of the sentence.” “‘If the district court fails to provide the rule 32 right of allocution, resentencing is required.’” Myers, 150 F.3d at 463 (quoting United States v. Dominguez-Hernandez, 934 F.2d 598, 599 (5th Cir. 1991)).
Therefore, we AFFIRM the conviction but VACATE the sentence and REMAND for resentencing.
6 Cf. United States v. Adams, 961 F.2d 505, 510-12 (5th Cir. 1992) (holding the error harmless where the district court failed to determine the ex- istence of a sufficient factual basis for the guilty plea but the record available to the appellate court independently supported it). Other circuits have held that written plea agreements containing infor- mation the district court failed to impart under rule 11 may cleanse the harm from the error. See, e.g., United States v. Cross, 57 F.3d 588, 591-92 (7th Cir. 1995) (finding harmless error where the defendant signed a plea agreement stating that the plea was voluntary); United States v. Parkins, 25 F.3d 114, 117-18 (2d Cir. 1994) (finding harmless error where the defendant signed a plea agreement that described the nature of the charge).