IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-51155

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CESAR RAUL RIOS,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:11-CR-743-1

Before KING, JOLLY, and HAYNES, Circuit Judges.

PER CURIAM:*

Cesar Raul Rios appeals his guilty plea conviction for conspiracy to 

possess with intent to distribute five kilograms or more of cocaine and aiding 

and abetting possession with intent to distribute five kilograms or more of 

cocaine. He was sentenced below the advisory guidelines range to ten years of 

imprisonment and five years of supervised release.

* 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

FILED

April 20, 2015

Lyle W. Cayce

Clerk

 

 Case: 13-51155 Document: 00513011341 Page: 1 Date Filed: 04/20/2015
No. 13-51155

As a threshold matter, the Government contends that if this court 

determines that the notice of appeal is untimely, the appeal should be 

dismissed. Because there is no jurisdictional impediment to reaching the 

merits of the appeal, we pretermit the determination of the timeliness of the 

notice of appeal and address the issues raised by Rios. See United States v. 

Martinez, 496 F.3d 387, 388-89 (5th Cir. 2007).

First, he argues that his due process rights were violated when the 

magistrate judge (MJ) erred by failing to advise him that the maximum term 

of supervised release was life. Rios concedes that plain-error review applies

and that, to show plain error, he must show a forfeited error that is clear or 

obvious and that affects his substantial rights. Puckett v. United States, 556 

U.S. 129, 135 (2009). He nevertheless argues that he need not show that the 

error affected his decision to plead guilty because he is not stating a claim 

under Federal Rule of Criminal Procedure 11 but rather a due-process claim 

that his plea was not knowing and voluntary. Even if such a narrowly drawn 

claim exists, see United States v. Dominguez Benitez, 542 U.S. 74, 84 n.10 

(2004), Rios cannot establish that his substantial rights were affected. Rios 

was told that he faced five years of supervised release, and he in fact received 

a five-year term of supervised release. He was also correctly told that he could 

be sentenced to life imprisonment. His presentence report (PSR) correctly 

informed him that he faced at least five years of supervised release, but he did 

not object to the PSR on this basis, seek to withdraw his plea, or object when 

the district court imposed the five-year term. Under the circumstances 

presented here, Rios cannot show any error resulting from the imposition of 

the five-year term of supervised release that affected his substantial rights. 

See Puckett, 556 U.S. at 135.

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No. 13-51155

Next, Rios argues that his due process rights were violated when the MJ 

asked him how he wished to plead prior to advising him of the rights he was 

waiving by pleading guilty. Rios failed to raise this argument in the district 

court; as a result, plain-error review applies. See id. At rearraignment, the 

MJ asked Rios if he was pleading guilty or not guilty, and Rios responded that 

he was pleading guilty. The MJ then advised him of the rights he would be 

waiving by pleading guilty. At the conclusion of the hearing, the MJ stated 

that he would recommend to the district judge that the guilty plea be accepted. 

Rios did not object to the MJ’s recommendation, and the district court 

thereafter accepted the recommendation and Rios’s guilty plea. Because the 

guilty plea was accepted after Rios was advised of the rights he was waiving, 

there was no error. See FED. R. CRIM. P. 11(b)(1).

The judgment is AFFIRMED.

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 Case: 13-51155 Document: 00513011341 Page: 3 Date Filed: 04/20/2015