United States v. Sanchez-Ronquillo

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 20, 2001
• Docket: 01-50206
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50206 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ADAN SANCHEZ-RONQUILLO, Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-00-CR-1696-1-DB -------------------- September 19, 2001 Before JOLLY, SMITH and STEWART, Circuit Judges.

PER CURIAM:*

Adan Sanchez-Ronquillo (“Sanchez”) pleaded guilty to with

illegal reentry into the United States following deportation, in

violation of 8 U.S.C. § 1326(a)(1). For the first time on

appeal, Sanchez argues that his conviction must be vacated and

that he be allowed to replead because the district court violated

Federal Rule of Criminal Procedure 11(c) during the guilty-plea

proceedings.

When an appellant asserts that a district court failed to

comply with Rule 11, this court reviews for harmless error. See

United States v. Johnson, 1 F.3d 296, 298, 301-02 (5th Cir. 1993)

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50206 -2-

(en banc) (all errors made in Rule 11 proceedings are subject to

harmless-error review).** The court asks whether the district

court in fact varied from the procedures required by Rule 11, and

if so, whether the variance affected substantial rights of the

defendant. Id.

Sanchez argues that under the reasoning of Apprendi v. New

Jersey, 530 U.S. 466 (2000), the indictment charged him with two

offenses, simple reentry after deportation and reentry after

deportation and a felony conviction. He argues that the district

court did not clearly inform him of the nature of the charge to

which he was pleading guilty or insure that he understood the

nature of the charge, in violation of Rule 11(c)(1). Sanchez

concedes that basis of his argument is foreclosed by Almendarez-

Torres v. United States, 523 U.S. 224 (1998), but he states that

he wishes to preserve the issue for Supreme Court review in light

of Apprendi. The district court informed Sanchez of, and ensured

that Sanchez understood the nature of, the offense of illegal

reentry after deportation charged against him. The district

court did not vary from Rule 11(c)(1).

The district court did fail to inform Sanchez specifically

of his right to assistance of counsel if he proceeded to a jury

trial, in violation of Rule 11(c)(3). Sanchez contends that this

** In a recent en banc case, this court implied that appellate review is for plain error only when a defendant has failed to raise a Rule 11 challenge in the trial court. United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001) (en banc). Other cases have disagreed on whether to apply the plain error or harmless error standards. Compare Johnson, 1 F.3d at 298 (harmless error), with United States v. Ulloa, 94 F.3d 949, 955 (5th Cir. 1996). Even if we apply the less demanding standard, any error by the district court was harmless. No. 01-50206 -3-

error is not harmless and materially affected the validity of his

plea.

Our review of the record convinces us that the district

court’s omission was not material to Sanchez’s decision to plead

guilty. See Johnson, 1 F.3d at 298, 302. Thus, the court’s

variance from Rule 11(c)(3) was harmless error.

AFFIRMED.