## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 99-41432

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### M ARIO 

### A LBERTO 

### H ERNANDEZ 

### -H ERNANDEZ



### ,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

(L-99-CR-648-1)

_________________________

November 10, 2000

Before JOLLY, JONES, and SMITH,

Circuit Judges.

JERRY E. SMITH, Circuit Judge: *

Mario Hernandez-Hernandez (“Hernandez”), a citiz en o f Mexico, pleaded guilty to

illegal reentry into the United States following

deportati on in violation of 8 U.S.C. § 1326.

He and his co unsel signed a plea agreement

admitting his guilt. Hernandez appeals,

claiming that his guilty plea was not voluntary,

that the district court violated the requirements

of F ED

. R. C RIM

. P. 11, and that the court

failed to al lo w him to make a statement in

mitigation of his sentence as required by F ED

. R. C RIM

. P. 32(c). We conclude that

Hernan dez intended to plead guilty and that

the failure to comply with rule 11 is harmless * Pursuan t to 5 T H C IR. R. 47.5, the court has

determined that this opinion should not be

published and is not precedent except under the

limited c ircumstances set forth in 5 T H C IR

. R. 47.5.4.2

er r or but that, as the government concedes,

the rule 32(c) v i olations require us to vacate

the sentence and remand it.

I.

Hernandez asserts he did not i n tend to

plead guilty and that the court neither entered

a guilty plea nor explicit ly accepted his plea.

The record shows, h owever, that the district

court accepted Hernandez’s plea by entering a

judgment of conviction on December 3, 1999.

We review the acceptance of a guilty plea for

clear error, United States v. Rivas

, 85 F.3d

193, 194 (5th Cir. 1996), and the voluntariness

of the plea de novo

, United States v. Reyna,

130 F.3d 104, 111 (5th Cir. 1997).

A defendant must plead guilty knowingly

and voluntarily. 2 T he guilty plea “is itself a

conviction; n o t hing remains but to give

judgment and determine sentence.” Boykin v.

Alabama, 395 U.S. 238, 242 (1969). If t he

defendant does not affirmat ively show that he

intelligently and voluntar ily intends to plead

guilty, the conviction cannot stand. See id.

The district court indisputably violated the

rule 11 procedures designed to act as a

prophylactic against precisely this type of

challenge to a con viction. Regardless of the

procedural errors, howe ver, the record

contains a written plea a greement signed by

Hernandez, his counsel, and the prosecuto r

. Hern andez affirmed in court that he

underst o o d the agreement and its contents.

Even though the court did not instruct him in

open court as per rule 11, this fact in and of

itself does not indicate that Hernandez did not

“possess[] an under s tanding of the law in relation to the facts.” M cCarthy v. United

States, 394 U.S. 459, 466 (1969)(finding such

understandi ng an essential component of a

knowing and voluntary plea).

The existence of a written plea agreement

and the fact that Hernandez did not assert either (a) that he is innocent or (b) that he would

not have waived his right to trial ha d he

received the benefit of the rule 11 warnings

lend credence to the district court’s finding

that Hernandez intentionally pleaded guilty.

On appeal, however, Hernandez contests the

validity of his plea becau se he never affirmed

in open court that he would plead guilty of his

own free will, that he understood the range of

punishment, or th at he understood that he

waived his right to a jury trial. 3

Hernandez, however, signed a written plea

agreeme n t containing this information and

delineating the range of punishment and the

speci fic rights he would have at trial that he

waived by signing th e agreement. The

agreement additionally states that “[t]he

defendant acknowledges that no th reats have

been made against t he defendant and that the

defendant is p leading guilty freely and

voluntarily because the defendant is guilty.”

On the stre n gth of this language, we

conclude that Hernandez pleade d guilty

voluntarily. With this plea agreement before

it, the court did not clearly er r either in

determining that Hernandez intended to enter

a guilty plea or in accepting that plea. 4

2 McChesney v. Henderson

, 482 F.2d 1101,

1106 (5th Cir. 1973) (citing B rady v. United

States , 397 U.S. 742 (1970)). 3 Cf . United States v. Williams, 2 0 F.3d 125,

133 (5th Cir. 1994).

4 Cf. United States v. Grandia

, 18 F.3d 184,

187 (2d Cir. 1994) (concluding that failure to ask

(continued...)3 II.

Hernandez argues that the failure to comply

w ith the requirements of rule 11 rendered his

guilty plea void. We disagree. Even though

the court was lax in accepting the plea, these

“variances from the procedures required” by

rule 11 do no t affect Hernandez’s substantial

rights; thus, we disregar d them. S ee F ED

. R.

C RIM

. P. 11(h).

We review compli ance with rule 11

de novo

. U

nited States v. Myers, 15 0 F.3d

459, 461 (5th Cir. 1998) (citing United States

v. Scott, 987 F.2d 261, 264 (5th Cir. 1993)).

A defendant may asser t rule 11 violations on

appeal regardl e ss of whether he raised the issue in the district court. U nited States v.

Suarez, 155 F.3d 521, 524 (5th Cir. 1998).

Rule 11(c) requires the court to address the

defendant personally to determine that he understands and to inform him of certain fa cts,

including the nature of the charge , the

penalties involved, the right to an attorney

, the

right to a jury trial and the rights attendant to

trial, and the waiver of those rights effected by

the guilty plea. F E D

. R. C RIM

. P. 11(c)(1)-(5).

The court must “determin[e] that the ple a is

voluntary and not the result of force or threats

or of promises apart from a plea agreement.”

F ED

. R. C RIM

. P. 11(d). If the defendant and

t he government have reached a written plea

agreement, the court must advise the

defendant that he has no right to withdraw his

guilty plea if the court does not accept the prosecutor’s sentencing recommendation.

F ED

. R. C RIM

. P. 11(e)(2). Finally, the court

must make sufficient inquiry to establish a

satisfactory factual basis for the plea. F E D

. R.

C RIM

. P. 11(f).

A conviction mus t be vacated when the

court fails to follow the procedures prescribed

by rule 11 and those va riances affect

substantive rights. U

nited States v. Watch, 7

F.3d 422, 428-29 (5th Cir. 1993). The parties

agree tha t t he court failed to follow the

procedures required by rule 11. Thus, we

must decide w het her those failures affected

Hernandez’s substantia l rights. S ee rule

11(h). 5 Because they did not, we disregard

them.

A variance from rule 11 affects substantial

rights if “the defendant’s knowledge and comprehension of the full and correct information

would have been likely to affect his willingness

to plead guil

ty.” J ohnson, 1 F.3d at 302.

Because the plea a greement contained all the

information the court must impart under rule

11, the court’s actions did not affect Hernandez’s decision to plead guilty.

Hernandez answered affirmatively when

asked, during the plea hearing, whether he understood th e agreement. The written

agreement independently informed him, before

he appeared in court, of each of the

procedures required by rule 11. Thus, the

court’s actio ns did not materially affect

Hernandez’s understanding of the proceedings

4 (...continued)

defendant “ How do you plead?” in open court is

not fatal if it is evident from the fac ts and

circumstances that defendant intended to plead

guilty, affirmatively admitted his guilt, stated that

he entered plea voluntarily, a nd fully believed he

was pleading guilty). 5 See also United States v. Henry

, 113 F.3d

37, 40 (5th Cir. 1997) (citing United States v.

Johnson, 1 F.3 d 296, 297 (5th Cir. 1993)

(en banc)).4

or willingness to plead. 6

III.

The government agrees with Hernandez’s

contention that we must vacate and remand his

sentence because the court failed to comply

w i th F ED

. R. C RIM

. P. 32(c)(3)(C), which

requires it to “address the defendant personally

and determine whether the defendant wished

t o make a statement and to present any

information in mitigation of the sentence.” “‘If

the district court fails to provide the rule 32

right of allocution, resentencing is required.’”

Myers

, 150 F.3d at 463 (quoting United States

v. Dominguez-Hernandez, 934 F.2d 598, 599

(5th Cir. 1991)).

Therefore, we AFFIRM the conviction but

VACATE th e sentence and REMAND for

resentencing.

6 Cf. United States v. Adams, 961 F.2 d 505,

510-12 (5th Cir. 1992) (holding the error harmless

where the district court failed to determine the existence of a sufficient fact ual basis for the guilty

plea but the record available to the appellate court

independently supported it). Other circuits have

held that written plea agreements containing information the district court failed to impart under rule

11 may cleanse the harm from the error. S ee, e.g.,

United States v. Cross, 57 F.3d 588, 591-92 (7th

Cir. 1995) (finding harmless error where the

defendant signed a plea agreement stating that the

plea was voluntary); United States v. Parkins, 25

F.3d 114, 117-18 (2d Cir. 1994) (finding harmless

error where the defendant signed a plea agreement

that described the nature of the charge).