United States v. Hopkins

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 28, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-10624
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCUS TYKI HOPKINS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:04-CR-135-1
--------------------
Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Marcus Tyki Hopkins appeals his guilty-plea conviction on
one count of possession with intent to distribute cocaine base in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). Hopkins asserts
that the district court failed to comply with FED. R. CRIM. P. 11
in several respects. He also argues that his plea was not
voluntary because he mistakenly believed that, in light of United
States v. Booker, 542 U.S. 220 (2005), the district court could
not consider relevant conduct in determining his sentence.
As Hopkins failed to challenge the voluntariness of his plea

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No. 05-10624
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or the district court’s compliance with Rule 11, review is for
plain error, which requires Hopkins to demonstrate (1) error,
(2) that is clear or obvious, and (3) that affects substantial
rights. See United States v. Reyes, 300 F.3d 555, 558 (5th Cir.
2002). In considering the “substantial rights” prong, we review
the entire record to determine whether there exists a “reasonable
probability that, but for the error, he would not have entered
the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83
(2004).
In light of the plain language of the written plea agreement
as well as the statements of both Hopkins and counsel during the
plea colloquy, Hopkins has failed to demonstrate that the Rule 11
variances of which he complains affected his decision to plead
guilty. See United States v. Smith, 184 F.3d 415, 417 (5th Cir.
1999); United States v. Portillo, 18 F.3d 290, 292-93 (5th Cir.
1994). With respect to his purported misunderstanding of the
effect of Booker on his guilty plea, the record shows that
Hopkins understood that he faced a maximum sentence of life and
that the district court had the sole discretion to determine his
sentence. Therefore, he understood the consequences of his
guilty plea. See United States v. Jones, 905 F.2d 867, 868-69
(5th Cir. 1990).
For the foregoing reasons, the judgment of the district
court is AFFIRMED.

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