# United States Court of Appeals **for the Fifth Circuit**

No. 21-40122 Summary Calendar

United States of America, Plaintiff—Appellee ,

versus Henry Acevedo, Defendant—Appellant

.

Appeal from the United States District Court for the Southern District of Texas USDC No. 2:20-CR-565-1

Before Barksdale, Willett, and Duncan, Circuit Judges

. Per Curiam: * Henry Acevedo pleaded guilty to posse ssion of a firearm as a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). He contends the district court erred by conducting his rearra ignment by video conference.

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED October 5, 2021

Lyle W. Cayce Clerk Case: 21-40122 Document: 00516042578 Page: 1 Date Filed: 10/05/2021No. 21-40122

2 As an initial matter, the Govern ment seeks to enforce the appealwaiver in Acevedo’s plea agreement. Ac evedo counters his challenge is not subject to it. Because his challenge fa ils on the merits, we need not resolve this issue. See United States v. Story , 439 F.3d 226, 230–31 (5th Cir. 2006) (noting appeal waivers “do not depriv e [our court] of jurisdiction”); United States v. De Leon , 915 F.3d 386, 389 n. 2 (5th Cir. 2019) (p retermitting waiver because merits of defendant’s cha llenge implicated plea-agreement’s validity). Federal Rule of Criminal Procedure 43 requires defendant to be “present” when entering a plea. Fed. R. Crim. P. 43(a)(1) (prescribing rules regarding defendant’s presence). This means physical presence. See United States v. Navarro , 169 F.3d 228, 235–39 (5th Cir. 1999) (holding sentencing conducted by video confer ence violates Rule 43, “[a]bsent a determination by Congress that closed circuit television may satisfy the presence requirement” (citation omitted))

. Acevedo, however, did not object to the court’s conducting his rearraignment by video conference; to the contrary, he consented to that method. He maintains, nonetheless, his challenge should be reviewed de

novo , contending Rule 43 violations are reversible per se

. But see United States v. Thomas , 724 F.3d 632, 641 (5th Cir. 2013) (noting defendant must demonstrate prejudice). For the reason s that follow, Acev edo’s challenge is not subject to de novo review. Because, as discussed infra , Acevedo did not rais e this challenge in district court, review is only for plain error. E.g. , United States v. Broussard , 669 F.3d 537, 546 (5th Cir. 2012). Un der that standard, Acevedo must show a forfeited plain error (clear or obviou s error, rather than one subject to reasonable dispute) that affe cted his substantial rights. Puckett v. United States , 556 U.S. 129, 135 (2009). If he makes that showing, we have the Case: 21-40122 Document: 00516042578 Page: 2 Date Filed: 10/05/2021No. 21-40122

3 discretion to correct the reversible plai n error, but generally should do so only if it “seriously affect[s] the fairness, in tegrity or public re putation of judicial proceedings”. Id. As noted, Acevedo does not dispute he knowingly and voluntarily waived the right to enter his plea in per son. Instead, he contends: his consent is void ab initio because compliance with Rule 43 cannot be waived; and a condition was not satisfied for proceeding remotely, pursuant to the Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, § 15002(b), 134 Stat. 281, 528–29 (202 0) (CARES Act) (permitting, subject to certain requirements, video tele conferencing in listed criminal proceedings, including arraignments). As for Acevedo’s first contention, given his failure to identify a decision of our court holding or expl aining defendant cannot waive his right to be present under Rule 43(a), any e rror in this regard was not “clear or obvious”. Puckett , 556 U.S. at 135; see United States v. Gonzalez , 792 F.3d 534, 538 (5th Cir. 2015) (noting “lack of binding authority is often dispositive in the plain-error context”). Acev edo also fails to explain: how the purported error affects his substantial rights; or how leaving it uncorrected affects the fairness, integrity, or pub lic reputation of judicial proceedings. Regarding his CARES-Act challenge (dis trict court did not state reasons for why delaying plea would cause “serious ha rm to the interests of justice”), he has not demonstrated it warrants revers al under the plain-error standard.
AFFIRMED

. Case: 21-40122 Document: 00516042578 Page: 3 Date Filed: 10/05/2021