United States v. Avila-Santos

* 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that this opinion should not be published and is not precedent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
October 21, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-41679
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIO CESAR AVILA-SANTOS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-668-1
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Julio Cesar Avila-Santos (Avila) pleaded guilty, pursuant to
a plea agreement, to transporting an undocumented alien within
the United States. On appeal, Avila argues that his guilty plea
was not given knowingly and voluntarily and was not given in
compliance with FED. R. CRIM. P. 11. However, Avila incorrectly
cites the former version of Rule 11 in support of his arguments.
The Federal Rules of Criminal Procedure were amended effective

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No. 03-41679
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December 1, 2002. Because Avila’s rearraignment occurred after
that date, the current version of Rule 11 controls.
A guilty plea involves the waiver of several constitutional
rights, and, accordingly, it must be made knowingly and
voluntarily. See Boykin v. Alabama, 395 U.S. 238, 242-44 (1969);
see also FED. R. CRIM. P. 11. When, as here, a defendant does not
object to Rule 11 errors in the district court, we review for
plain error only. United States v. Vonn, 535 U.S. 55, 58-59
(2002). “[A] defendant who seeks reversal of his conviction
after a guilty plea, on the ground that the district court
committed plain error under Rule 11, must show a reasonable
probability that but for the error, he would not have entered the
plea.” United States v. Dominguez Benitez, 124 S. Ct. 2333, 2340
(2004).
Avila argues that the district court failed to comply with
Rule 11 because it (1) failed to admonish him of a mandatory
minimum sentence; (2) failed to inform him of its obligation to
apply the sentencing guidelines and its discretion to depart from
those guidelines; (3) failed to inquire whether his willingness
to plead guilty resulted from prior discussions between his
attorney and the Government; (4) failed to inform him that his
offense level could have been reduced under U.S.S.G. § 5K1.1 had
he provided substantial assistance to the Government; and
(5) failed to adequately explain supervised release.

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No. 03-41679
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None of Avila’s assertions have merit. The district court did
not violate current Rule 11 in conducting the plea colloquy.
AFFIRMED.

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