United States v. Toruno

* 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this opinion should not be published and is not precedent except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
May 23, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-20132
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS ALBERTO TORUNO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:05-CR-64-4
--------------------
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Carlos Alberto Toruno pleaded guilty to conspiracy to
violate federal firearms law (Count One) and to making a false
statement in connection with the acquisition of a firearm (Count
Eight). See 18 U.S.C. §§ 371, 922(a)(6). Following a U.S.S.G.
§ 5K1.1 motion by the Government, the court sentenced Toruno to
33 months of imprisonment.
Toruno now seeks reversal of his convictions on both counts.
Toruno argues that his plea to Count Eight was not knowing and
voluntary because the district court at rearraignment and the

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No. 06-20132
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written plea agreement stated that the maximum statutory term of
imprisonment was five years instead of ten years. See 18 U.S.C.
§ 924(a)(2). Because Toruno did not object below, we review for
plain error. United States v. Vonn, 535 U.S. 55, 58-59 (2002).
Toruno must show that an error occurred, the error was plain, and
the error affected his substantial rights. United States v.
Olano, 507 U.S. 725, 732-35 (1993).
The parties do not dispute that the district court
incorrectly admonished Toruno regarding the maximum term of
imprisonment and that the error was clear and obvious. See
Olano, 507 U.S. at 734. Toruno has not shown, however, that the
error affected his substantial rights. In evaluating whether a
FED. R. CRIM. P. 11 error affected a defendant’s substantial
rights, we review the entire record to determine whether there
exists a “reasonable probability that, but for the error, [the
defendant] would not have entered the plea.” United States v.
Dominguez Benitez, 542 U.S. 74, 83 (2004). The district court
sentenced Toruno to a term of imprisonment far less than the
erroneously-stated maximum. Toruno does not allege that he would
not have pleaded guilty had the district court and the plea
agreement stated the correct maximum term. Toruno’s allegation
that he did not fully understand the consequences of his plea is
insufficient to show that the error affected his substantial
rights. See United States v. Pierce, 5 F.3d 791, 792-94 (5th
Cir. 1993).

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No. 06-20132
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Toruno also argues that his statements at sentencing
constituted denials of guilt and that the district court erred in
accepting his pleas. Because Toruno did not object below, our
review is for plain error only. United States v. Brown, 328 F.3d
787, 789 (5th Cir. 2003).
The record shows that Toruno unequivocally admitted the
facts stated by the Government in support of the charges. Toruno
repeatedly affirmed his understanding of the charges against him,
the terms of the plea agreement, and his desire to plead guilty.
Toruno has not shown that the acceptance of his guilty pleas was
plain error. See Olano, 507 U.S. at 734.
AFFIRMED.

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