United States v. Justo Farias

488 F.2d 852, 1974 U.S. App. LEXIS 10379

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 25, 1974
• Docket: 71-2814, 71-2886
• Status: Published

Opinions

PER CURIAM:

First appearing before a panel of this Court on appeal from denial below of a F.R.Crim.P. 32(d) motion to withdraw a guilty plea,¹ this case was affirmed in light of our earlier decision in Trujillo v. United States, 5 Cir., 1967, 377 F.2d 266, cert. denied, 389 U.S. 899, 88 S.Ct. 224, 19 L.Ed.2d 221. The Court, however, sua sponte took the case en banc to determine whether Trujillo should any longer be followed in its holding that the ineligibility for parole of one convicted of certain narcotics crimes is not a “consequence of a plea of guilty,” F.R.Crim. P. 11, so that on a guilty plea proceeding the sentencing Judge need not expressly advise the defendant accordingly.

Since that time two significant things have occurred. First is the enactment of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C.A. § 801 et seq., which, for certain offenses occurring after its effective date of May 1, 1971, not only does it permit, it mandates a special parole term, 21 U.S.C.A. § 960(b) and likewise, in carefully defined instances, it provides for nrobated sentences and the expunging of all criminal records. Second, although for a pre-1971 offense the Court must sentence under the prior law which forbids probation/parole, United States v. Bradley, 1973, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528, we have now joined others in holding that such a pre-1971 defendant is eligible for consideration of parole by the Parole Board, Amaya v. United States, 5 Cir., 1973, 486 F.2d 940 [1973].

Considering that the relief of federal courts may not be invoked absent some prejudice to substantial rights, F.R.Crim.P. 52(a), it is evident that Farias cannot successfully show that — whatever error might be assumed to have occurred at his sentencing — he sustained any real harm. He is eligible for consideration for parole. Indeed, he is no worse off by virtue of these subsequent events than he would have been had the sentencing Judge advised him that he was not eligible for such leniency.

Because we conclude that subsequent events have eliminated the entire risk of any real harm being sustained by Farias the judgment of the trial court is

Affirmed.

1 . It was contended by counsel for appellant that the F.R.Crim.P. 32(d) motion was entered when counsel learned for the first time that her client was statutorily ineligible for parole.