United States v. Ramirez

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 23, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-50885 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTONIO RODRIGUEZ RAMIREZ, also known as Antonio Ramirez Rodriguez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. SA-01-CR-601-ALL-FB --------------------

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Antonio Rodriguez Ramirez (Ramirez) appeals his guilty-plea

conviction for possession with intent to distribute more than

five kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1)

& (b)(1)(A). Ramirez contends, for the first time on appeal,

that his guilty plea was unknowing and involuntary because the

district court erroneously advised him during the plea colloquy

that he would not be eligible for a safety-valve reduction from

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50885 -2-

the mandatory-minimum ten-year sentence if he elected to go to

trial instead of pleading guilty. Ramirez also moves to strike a

portion of the Government’s brief. That motion is DENIED.

The record as a whole supports a determination that the

district court’s error in conducting the FED. R. CRIM. P. 11 plea

colloquy affected Ramirez’ substantial rights. See United States

v. Vonn, 535 U.S. 55, 122 S. Ct. 1043, 1046 (2002); United States

v. Guerra, 94 F.3d 989, 995 (5th Cir. 1996) (§ 2255 case). Under

the circumstances presented, it is appropriate to exercise our

discretion to correct the plain error. See Vonn, 122 S. Ct. at

1048.

The judgment of conviction is VACATED and this case is

REMANDED to allow Ramirez to enter a new plea.

MOTION DENIED; VACATED AND REMANDED FOR FURTHER PROCEEDINGS.