USA vs. Amaya, (5th Cir. 2001)

Text

---

* Pursuant to 5 T H C IR . R. 47.5, the Court has determined that th i s opinion s h ould not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .

R. 47.5.4. UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50548 Summary Calendar Civil Docket # SA-00-CR-74-1-EP UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DANIEL AMAYA, Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas March 6, 2001 Before DAVIS, JONES, and DeMOSS, Circuit Judges.

EDITH H. JONES, Circuit Judge: * Appellan t Amaya, an illegal alien, was caught in the middle of his attempt to hijack a truck at gunpoin t. During the middle of this episode, the truckÂ’s owner was shot in the chest.

Amaya was charged by federal authorities as being an illegal alien in possession of a firearm, in violation of 18 U.S.C. § 922(g)(5)(A). After pleading guilty without an agreement with the governmen t, Amaya was sentenced to 97 months imprisonment, plus three years supervised release and a fine. Still represented by the federal public defender, he now appeals, contending that the Rule 11 coll oquy was insufficient and that as a result his plea should be vacated and the case remanded for another plea proceeding. Finding no reversible error, we affirm.

The district court, no doubt inad vertently, omitted to inform Amaya at the plea hearing that his sentence would be determined acco rding to the U.S. Sentencing Guidelines, but that the court could depart from them in some circumstances. He also failed to admonish Amaya of the effect of supervised release, i.e. , that if Amaya violated its terms, he could be incarcerated for 24 months in addition to the maximum imprisonment sentence. The latter error resulted in a one-month di screpancy between the 10- year maximum statutory term to which Amaya knew he was exposed, and the cumulative term (10 years, one month) he might receive if he served 97 months, then commenced supe rvised release and violated it, resulting in two years more incarceration.

Under the circumstances of this case, we find that while the courtÂ’s o missions technically violated Rule 11, they do not result in reversible error. 1 First, AmayaÂ’s sentence was considerably shorter than the maximum statutory term. It is hard to infer that a simple admonishment about the existence of the Sentencing Guidelines would have influenced him one way or another about the guilty plea. Second, appellant does not claim on appeal in regard to either of the courtÂ’s errors that he would have pled differentl y or insisted on going to trial if he had known the Sentencing Guidelines provide the range or if he had known about the potential effect of a revocation of supervised release. We cannot draw an inference of reversibl e error when even the defendant only speculates about harm and has not flatly a sserted that these omissions affected his decision to plead guilty. S ee United States v. Williams , 120 F.3d 575, 578 (5th Cir. 1997) (harmless error where the defendant did not claim he would have pleaded differently absent the error.) Third, the district court did not fail to m ention the term of supervised release, but only its effect , which gives rise at most to the question whether AmayaÂ’s substantial rights were violated . U nited States v. Tuangmaneeratmun , 925 F.2d 797, 803-04 (5th Cir. 1991). Because of the virtual congruity between the maximum statutory sente nce and the longest time that Amaya might ac tually serve, the courtÂ’s omission did not affect appellantÂ’s substantial rights.

Fourth, Amaya pled gu ilty without a plea agreement constraining the ability to appeal his sentence, but he has not appealed the sentence. Nevertheless, at the sentencing colloquy, Amaya’s counsel admitted that the 97-month sentence would be “appropriate,” although he argue d for a downward departure or a different sentencing calculation that would have yielded a sentence half as long. On its face, the concession of appropriateness is inconsistent with a claim of harmful error in regard to the validity of the plea. Finally, examining both the PSR and sentencing hearing, we find no indication that the court’s omissions had any effect on the guilty plea. No reversible error has been shown. AFFIRMED .

1 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. U nited States v. Marek , F.3d (5th Cir. Jan. 4 , 2001), slip op. at 1455, 2001 WL at 10561, at *3. Other cases have disagreed on whether to apply the plain error or harmless error standards. Compare U.S. v. Johnson , 1 F.3d 296, 298 (5th Cir. 1993) (en banc) (harmless error), with United States v. Ulloa , 94 F.3d 949 , 955 (5th Cir. 1996). Even if we apply the less

demanding standard, this courtÂ’s errors were harmless

---