*

 Pursuant to Fifth 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 Fifth Circuit

Rule 47.5.4.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 01-40280

(Summary Calendar)

_________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JECCSAN ORTIZ-SALAZAR,

Defendant - Appellant.

Appeal from the United States District Court

For the Southern District of Texas

V-00-CR-91-ALL

September 17, 2001

Before JONES, SMITH and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

H. Michael Sokolow (“Sokolow”), a court-appointed Federal Public Defender for the

defendant-appellant Jeccsan Ortiz-Salazar (“Ortiz-Salazar”), has filed a motion to withdraw as
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counsel in accordance with Anders v. California, 386 U.S. 738 (1967). We grant the motion, holding

that there are no non-frivolous grounds for appealing Ortiz-Salazar’s conviction for illegal re-entry

by a deported alien convicted of an aggravated felony in violation of 8 U.S.C. § 1326(a) and

§ 1326(b)(2). Consequently, we also dismiss Ortiz-Salazar’s appeal.

Ortiz-Salazar, a lawful resident alien, was convicted on a cocaine charge and deported from

the United States. Sometime later, he illegally re-entered the United States. On October 13, 2000,

agents from the Immigration and Naturalization Service found Ortiz-Salazar in a jail in Victoria,

Texas. He was subsequently indicted for illegally re-entering the United States following an

aggravated felony conviction in violation of 8 U.S.C. § 1326(a) and § 1326(b)(2). 

The court appointed Sokolow, a Federal Public Defender, to represent Ortiz-Salazar, who

eventually pleaded guilty to the charge in the indictment. Relying on the Presentence Report

(“PSR”), the district court sentenced him to 41 months imprisonment, three years of supervised

release, and a special assessment fee of $100. Ortiz-Salazar filed an appeal, objecting to both his

guilty plea and the sentence. 

Sokolow has filed a motion to withdraw, contending that there are no non-frivolous issues

for appeal. The Supreme Court in Anders held that a court-appointed attorney can withdraw from

a direct criminal appeal if the attorney, after a “conscientious examination” of the case, finds no

meritorious groundsfor appeal. Anders, 386 U.S. at 744. After examining Sokolow’s Anders brief,

the pro se brief submitted by Ortiz-Salazar and the trial record, we find four potential issues on

appeal. All of them lack merit.

The first issue is whether the district court substantially complied with the plea requirements

of the Federal Rules of Criminal Procedure. Rule 11(c) stipulates what information and advice the
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district court should give to a defendant who pleads guilty. See FED. R. CRIM. P. 11(c). At the plea

hearing, the court asked Ortiz-Salazar if he understood, among other things, that he was not obliged

to plead guilty; that he would be waiving hisright to a trial; and that he could face up to twenty years

in prison. Ortiz-Salazar, aided by an interpreter, said that he understood and pleaded guilty. 

The district court, however, failed to inform Ortiz-Salazar that he was under oath at the plea

hearing, and that he could be prosecuted for perjury if he gave false statements. See FED. R. CRIM.

P. 11(c)(5) (requiring this perjuryadmonishment). We apply a harmless-error analysis when a district

court failsto comply strictlywithRule 11(c). See United States v. Johnson, 1 F.3d 296, 298 (5thCir.

1993) (en banc) (asking if the district court varied from the Rule 11 procedures and if that variance

affected substantial rights of the defendant). We find that the district court’s failure to give the

perjury admonishment was harmless error, because Ortiz-Salazar does not contend that he perjured

himself, nor does he claim he was prejudiced by the court’s error. See United States v. Law, 633 F.3d

1156, 1157 (5th Cir. 1981) (holding that the failure to give the perjury admonishment was harmless

error). 

Second, Ortiz-Salazar makes an Apprendi argument, claiming that hisindictment supposedly

failed to mention that he had earlier been convicted of an aggravated felony. See Apprendi v. New

Jersey, 530 U.S. 466 (2000). Contrary to Ortiz-Salazar’s assertion, the indictment states that he had

been deported after having “been convicted of an aggravated felony.” Even if the indictment had not

mentioned the prior aggravated felony, his argument would fail because the Supreme Court has held

that 8 U.S.C. § 1326(b)(2) is a penalty provision, and not an element of the crime. See AlmendarezTorres v. United States, 523 U.S. 224 (1998). The Supreme Court in Apprendi expressly declined

to overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90;see also United States v. Dabeit,
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231 F.3d 979, 984 (5th Cir. 2000) (recognizing that Almendarez-Torres remains good law).

Third, Ortiz-Salazar claims that the district court erred in calculating his sentence. After

reviewing the record, we find no error. The district court found that the base offense level for illegal

re-entry is eight. See U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 (2000). It then added 16

levels under § 2L1.2(b)(1)(A) because Ortiz-Salazar had been deported after an aggravated felony.

That level was reduced by three for timely acceptance of responsibility. See U.S. SENTENCING

GUIDELINES MANUAL § 3E1.1(a),(b). Thus, the total offense level was 21. Given his prior criminal

history, Ortiz-Salazar fell into criminal history category II, resulting in an imprisonment range of 41

to 51 months. See U.S. SENTENCING GUIDELINES MANUAL ch. 5, p. A. The court ultimately meted

out a 41-month prison term.

Finally, there remainsthe issue ofwhether Sokolow rendered ineffective assistance of counsel

by failing to argue certain mitigating factors, such as extreme family hardship. “The general rule in

this circuit isthat a claimofineffective assistance of counsel cannot be resolved on direct appealwhen

the claim has not been raised before the district court since no opportunity existed to develop the

record on the merits of the allegations.” United States v. Higdon, 832 F.2d 312, 313-14 (5th Cir.

1987). We cannot review this claim because of insufficient development of the record; Ortiz-Salazar

can raise it in his petition for habeas relief.

The Anders motion is GRANTED, and Ortiz-Salazar’s appeal is consequently DISMISSED.