IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40557

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

versus

JOSE ANGEL DELGADO-MENDOZA,

Defendant–Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:13-CR-1232-3

Before JOLLY, SMITH, and GRAVES, Circuit Judges.

PER CURIAM:*

Jose Delgado-Mendoza appeals his conviction of conspiracy to possess 

 

* 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

November 21, 2016

Lyle W. Cayce

Clerk

 Case: 15-40557 Document: 00513767591 Page: 1 Date Filed: 11/21/2016
No. 15-40557

2

with intent to distribute methamphetamine, heroin, and cocaine. He contends 

that the magistrate judge who conducted the plea hearing plainly erred under 

Federal Rule of Criminal Procedure 11(b)(1)(G) by failing to inform him that 

his voluntary participation in the conspiracy was an element of the offense. 

See United States v. Patino-Prado, 533 F.3d 304, 309 (5th Cir. 2008). During 

his safety-valve debriefing and at sentencing, Delgado-Mendoza claimed that 

he had agreed to transport narcotics into the United States because he felt 

threatened by strangers who approached him at a convenience store. 

The forfeited alleged error did not affect Delgado-Mendoza’s substantial 

rights, because the record as a whole does not show a reasonable probability 

that he would have changed his plea if informed of the voluntariness element 

during the Rule 11 colloquy. See United States v. Dominguez Benitez, 542 U.S. 

74, 83 (2004); United States v. Vonn, 535 U.S. 55, 59 (2002). The district court’s 

finding that Delgado-Mendoza fabricated the claim to avoid providing information about members of the drug-trafficking organization during the safetyvalve debriefing is plausible in light of the record as a whole and thus is not 

clearly erroneous. See United States v. Serfass, 684 F.3d 548, 550 (5th Cir. 

2012). Delgado-Mendoza did not mention the alleged threats at any time 

before the debriefing, and he had an easy, friendly manner with his coconspirators and familiarity with drug-smuggling code words in recorded conversations. Even after he alleged that he participated in the conspiracy

because he felt threatened, Delgado-Mendoza did not assert that he committed 

the offense under duress, nor did he move to withdraw his guilty plea. Instead, 

he continued to express a desire to plead guilty. 

Moreover, even if the alleged Rule 11 error did affect Delgado-Mendoza’s 

substantial rights, we would not exercise our discretion to correct the error,

because the record indicates that his participation in the conspiracy was 

 Case: 15-40557 Document: 00513767591 Page: 2 Date Filed: 11/21/2016
No. 15-40557

3

voluntary. We exercise our discretion to correct forfeited errors only in “exceptional circumstances,” United States v. Pena, 720 F.3d 561, 576-77 (5th Cir. 

2013), where “a miscarriage of justice would otherwise result,” United States 

v. Escalante-Reyes, 689 F.3d 415, 425 (5th Cir. 2012) (en banc) (internal quotation marks and citation omitted).

The judgment is AFFIRMED.

 Case: 15-40557 Document: 00513767591 Page: 3 Date Filed: 11/21/2016