IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-41141

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

HUMBERTO SOLIS, JR.,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:08-CR-419-6

Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.

PER CURIAM:

*

Humberto Solis, Jr., appeals his guilty plea conviction for conspiracy to

distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a),

(b)(1)(A), and 846. Solis argues for the first time on appeal that the district court

violated Federal Rule of Criminal Procedure 11 by failing to explain adequately

the nature of the offense of conviction. He also argues for the first time on

appeal that his guilty plea is invalid because the district court violated Rule 11

by failing to inform him of the 20-year statutory minimum sentence under

United States Court of Appeals

Fifth Circuit

F I L E D

February 10, 2011

Lyle W. Cayce

Clerk

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.

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No. 09-41141

§ 841(b)(1)(A). Where, as here, a defendant has not objected to a Rule 11 error

in the district court, review is for plain error. See United States v. Vonn,

535 U.S. 55, 59 (2002). To show plain error, the appellant must show a forfeited

error that is clear or obvious and that affects his substantial rights. Puckett v.

United States, 129 S. Ct. 1423, 1429 (2009). If the appellant makes such a

showing, this court has the discretion to correct the error but only if it seriously

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

In reviewing the effect of a Rule 11 violation, we may review the entire record,

not just the plea hearing transcript. Vonn, 535 U.S. at 59.

A district court is required by Rule 11 to address the defendant and inform

him of the nature of the charges. FED. R. CRIM. P. 11(b)(1)(G). Here, Solis’s

indictment – which sufficiently set forth the requisite elements of the offense of

conviction – was read at his rearraignment, and he affirmed that he understood

the charge and had discussed it with his counsel. The Government also recited

at rearraignment the factual basis for Solis’s plea, which adequately alleged the

elements of the offense, and Solis admitted to those facts as true. Further, the

presentence report (PSR) contains statements by Solis demonstrating that he

understood the nature of his criminal conduct. Thus, the record supports that

Solis was sufficiently advised of the nature of his offense, and there was no error,

plain or otherwise. See Puckett, 129 S. Ct. at 1429; United States v. LujanoPerez, 274 F.3d 219, 225-26 (5th Cir. 2001).

Solis’s contention that the district court committed reversible error by not

properly advising him of the mandatory minimum sentence also is unavailing.

See FED. R. CRIM. P. 11(b)(1)(I). The district court erroneously advised Solis at

rearraignment that he faced a mandatory minimum sentence of 10 years of

imprisonment when, in fact, his previous conviction of a felony drug offense

rendered him subject to a term of imprisonment of not less than 20 years or more

than life. § 841(b)(1)(A). The district court therefore committed obvious error.

See Puckett, 129 S. Ct. at 1429.

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However, Solis has not established that this error affected his substantial

rights because he does not now assert that he would not have pleaded guilty but

for the erroneous admonishment. See United States v. Dominguez Benitez,

542 U.S. 74, 83 (2004). The record also confirms that Solis was aware of the

consequences of his plea and that the mandatory minimum sentence did not

establish or otherwise affect the minimum sentence that he faced. Furthermore,

the PSR properly set forth the mandatory minimum sentence, and Solis was

correctly advised at sentencing of the mandatory minimum penalty. His failure

to move to withdraw his plea after being properly informed of the mandatory

minimum sentence suggests that the court’s omission did not meaningfully affect

his decision to plead guilty. Thus, Solis cannot show a reasonable probability

that, but for the district court’s failure to advise him of the correct mandatory

minimum penalty, he would not have pleaded guilty. See Dominguez Benitez,

542 U.S. at 83. Accordingly, he has not shown reversible, plain error. See

Puckett, 129 S. Ct. at 1429.

In light of the foregoing, Solis’s conviction and sentence are AFFIRMED.

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