IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50676

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RICARDO GARCIA-VARGAS,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:10-CR-45-1

Before DEMOSS, STEWART and CLEMENT, Circuit Judges.

PER CURIAM:

*

Ricardo Garcia-Vargas appeals his conviction and sentence for illegal

reentry in violation of 8 U.S.C. § 1326(a). He was sentenced to 37 months of

imprisonment and three years of supervised release. Garcia-Vargas has failed

to carry his burden of showing any reversible plain error based on the three

issues he raises in this appeal. See United States v. Sandlin, 589 F.3d 749, 757

(5th Cir. 2009), cert. denied, 130 S. Ct. 2078 (2010).

United States Court of Appeals

Fifth Circuit

F I L E D

June 14, 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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Garcia-Vargas contends that his plea was not knowing and voluntarily.

Because Garcia-Vargas did not raise any Rule 11 objection in the district court,

this court reviews for plain error. See United States v. Vonn, 535 U.S. 55, 59

(2002). The court, however, need not decide whether there was any Rule 11

error because Garcia-Vargas does not allege that, but for the error, he would not

have entered his guilty plea. See United States v. Dominguez Benitez, 542 U.S.

74, 83 (2004). Garcia-Vargas has failed to show that the district court’s error,

if any, in finding his guilty plea was knowing and voluntary affected his

substantial rights.

Garcia-Vargas also contends that the district court violated his Fifth

Amendment privilege against self-incrimination. Because Garcia-Vargas did not

raise an objection on this basis in the district court, we review his claim for plain

error. See United States v. Ronquillo, 508 F.3d 744, 748 (5th Cir. 2007). GarciaVargas asserts that the district court violated the privilege by questioning him

about an applicable defense, the underlying facts, and asking him to provide

proof of his version of the facts. Garcia-Vargas cites to no authority indicating

that the district court’s actions violated the privilege. As such, Garcia-Vargas

failed to show that the district court’s error, if any, in violating his Fifth

Amendment privilege against self-incrimination was clear or obvious. See

United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009), cert. denied, 130 S. Ct.

3462 (2010).

Finally, Garcia-Vargas argues that by answering questions that were

directed to him by the district court and deferred to him by defense counsel he

was impermissibly permitted to act as co-counsel or proceed pro se. Because

Garcia-Vargas did not object on this basis in the district court, this claim of error

is subject to plain error review. See United States v. Virgil, 444 F.3d 447, 456

(5th Cir. 2006); United States v. Phipps, 319 F.3d 177, 189 n.14 (5th Cir. 2003).

Garcia-Vargas’s argument presupposes that he was effectively transformed into

co-counsel or deprived of counsel and thus permitted to proceed pro se by

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No. 10-50676

answering the district court’s questions, which would require a hearing pursuant

to Faretta v. California, 422 U.S. 806, 821, 835 (1975), and United States v.

Cano, 519 F.3d 512, 516 (5th Cir. 2008). He has not offered any argument,

explanation, or authority in support of such a contention. Therefore, he has

failed to carry his burden of demonstrating there was any error. See Sandlin,

589 F.3d at 757.

The judgment of the district court is AFFIRMED.

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