United States v. Rangel-Silva

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 98-40554 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ADRIAN RANGEL-SILVA,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas (B-97-CR-502-1)

April 8, 1999

Before DAVIS, DUHÉ and PARKER, Circuit Judges.

PER CURIAM:*

Adrian Rangel-Silva pleaded guilty to being present in the

United States, without permission, following deportation, in violation of 8 U.S.C. §§ 1326(a), (b). The district court

sentenced him to a 46-month term of imprisonment. Rangel-Silva

timely filed this appeal, in which he argues that his conviction

must be reversed because the record of the guilty plea proceedings

is insufficient to allow for meaningful appellate review. He

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. asserts that we cannot evaluate, by reviewing the rearraignment

record, his personal responses to the district court’s questions

and cannot discern whether he understood the rights he was waiving.

Furthermore, he contends that this error is not harmless because he

is being denied his statutory right to appeal. Rangel-Silva’s

contentions are without merit. We affirm.

In the instant case, the district court conducted Rangel-

Silva’s rearraignment simultaneously with several other defendants.

The district court stated on the record that it would conduct the

proceedings in Spanish because the defendants and the attorneys

understood Spanish and that the interpreter would translate the

proceedings into English for transcription. The district court

stated on the record that each defendant indicated that he wanted

the proceedings to be conducted in Spanish. The district court

asked for objections from counsel, and the court received no

objections. The district court stated on the record that it would

follow a procedure in which it would elicit a response from each

individual defendant and that the record would show the response.

The district court stated on the record that “[i]t is incumbent

upon counsel to show that the court is in error.” The district

court, after most of its inquiries, states for the record that each

defendant had answered in the affirmative or in the negative. The

district court did not elicit individual responses from each of the

defendants for all the inquiries required by FED.R.CRIM.P. 11. The

district court did, however, obtain on the record individual

responses from the defendants when it asked them whether they

2 understood what they were being accused of doing2, when it

explained the potential penalty that the defendants faced and when

it read the actual charges against each defendant. The district

court obtained an individual plea of guilty from Rangel-Silva and

obtained an individual response from him regarding the lack of any

plea agreement with the Government.

A guilty plea involves the waiver of several constitutional

rights, and thus, it must be intelligent and voluntary. FED. R.

CRIM. P. 11 requires the district court to follow certain

procedures in determining whether a defendant’s guilty plea is made

knowingly and voluntarily. We employ a two-part “harmless error”

analysis to determine whether the district court has complied with

Rule 11: (l) whether the sentencing court varied from the

procedures required by Rule 11; and (2) if so, whether such

variance affected the defendant’s substantial rights.3

The procedure about which Rangel-Silva complains raises

concerns about possible error under Rule 11 and applicable case

law. However, because he failed to object to the procedure even

when the district court explicitly invited objections, we will not

exercise our discretion to correct any possible error. See United

States v. Nufio-Ortiz, No. 98-40370 (5th Cir., March 25, 1999)

(unpublished opinion).

Rangel-Silva also argues that the district court erred when it

2 Boykin v. Alabama, 395 U.S. 238 (1969). 3 United States v. Johnson, 1 F.3d 296, 298 (5th Cir. 1993)(en banc).

3 failed to recognize its authority to depart downward from the

sentencing guidelines based on his “cultural assimilation” in the

American society. This court “may only review a trial court’s

refusal to grant a downward departure from the guidelines if the

refusal was based on a violation of the law.” United States v.

Palmer, 122 F.3d 215, 222 (5th Cir. 1997). Rangel-Silva argues that

the district court denied the downward departure because it

concluded as a matter of law that it lacked authority to depart

downward on this basis.

At best, the record is ambiguous as to whether the district

court denied the downward departure because it determined that

Rangel-Silva did not warrant a downward departure or whether the

court determined that it had no authority to depart on that basis.

Where the record is ambiguous, we presume the court recognized its

authority. See United States v. Nelson, 54 F.3d 1540, 1544 (10th

Cir. 1995); United States v. Bailey, 975 F.2d 1028, 1035 (4th Cir.

1992); United States v. Helton, 975 F.2d 430, 434 (7th Cir. 1992);

United States v. Garcia-Garcia, 927 F.2d 489, 491 (9th Cir. 1991);

United States v. Russell, 870 F.2d 18, 20 (1st Cir. 1989). Under

these circumstances, the district court’s refusal to depart is not

reviewable.

AFFIRMED.