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 possession 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 rearraignment 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opinion should not be published and is not precedent except under the limited 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 

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As an initial matter, the Government seeks to enforce the appealwaiver in Acevedo’s plea agreement. Acevedo counters his challenge is not 

subject to it. Because his challenge fails 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 deprive [our court] of jurisdiction”); United 

States v. De Leon, 915 F.3d 386, 389 n.2 (5th Cir. 2019) (pretermitting waiver 

because merits of defendant’s challenge 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 conference 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 reasons that follow, Acevedo’s challenge is 

not subject to de novo review. 

Because, as discussed infra, Acevedo did not raise 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). Under that standard, Acevedo must show 

a forfeited plain error (clear or obvious error, rather than one subject to 

reasonable dispute) that affected his substantial rights. Puckett v. United 

States, 556 U.S. 129, 135 (2009). If he makes that showing, we have the 

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discretion to correct the reversible plain error, but generally should do so only 

if it “seriously affect[s] the fairness, integrity or public reputation of judicial 

proceedings”. Id. 

As noted, Acevedo does not dispute he knowingly and voluntarily 

waived the right to enter his plea in person. 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 (2020) (CARES Act) (permitting, subject 

to certain requirements, video teleconferencing in listed criminal 

proceedings, including arraignments). 

As for Acevedo’s first contention, given his failure to identify a 

decision of our court holding or explaining defendant cannot waive his right 

to be present under Rule 43(a), any error 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”). Acevedo also fails to explain: how the 

purported error affects his substantial rights; or how leaving it uncorrected 

affects the fairness, integrity, or public reputation of judicial proceedings. 

Regarding his CARES-Act challenge (district court did not state reasons for 

why delaying plea would cause “serious harm to the interests of justice”), he 

has not demonstrated it warrants reversal under the plain-error standard. 

AFFIRMED. 

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