IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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m 99-41432

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MARIO ALBERTO HERNANDEZ-HERNANDEZ,

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 citizen of Mexico, pleaded guilty to

illegal reentry into the United States following

deportation in violation of 8 U.S.C. § 1326.

He and his counsel 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 FED. R. CRIM. P. 11, and that the court

failed to allow him to make a statement in

mitigation of his sentence as required by FED.

R. CRIM. P. 32(c). We conclude that

Hernandez intended to plead guilty and that

the failure to comply with rule 11 is harmless

* 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.
2

error but that, as the government concedes,

the rule 32(c) violations require us to vacate

the sentence and remand it.

I.

Hernandez asserts he did not intend to

plead guilty and that the court neither entered

a guilty plea nor explicitly accepted his plea.

The record shows, however, 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 (5thCir. 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 The guilty plea “is itself a

conviction; nothing remains but to give

judgment and determine sentence.” Boykin v.

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

defendant does not affirmatively show that he

intelligently and voluntarily 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 conviction. Regardless of the

procedural errors, however, the record

contains a written plea agreement signed by

Hernandez, his counsel, and the prosecutor.

Hernandez affirmed in court that he

understood 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 understanding of the law in

relation to the facts.” McCarthy v. United

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

understanding 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 isinnocent or (b) that he would

not have waived his right to trial had 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 because he never affirmed

in open court that he would plead guilty of his

own free will, that he understood the range of

punishment, or that he understood that he

waived his right to a jury trial.3 

Hernandez, however, signed a written plea

agreement containing this information and

delineating the range of punishment and the

specific rights he would have at trial that he

waived by signing the agreement. The

agreement additionally states that “[t]he

defendant acknowledges that no threats have

been made against the defendant and that the

defendant is pleading guilty freely and

voluntarily because the defendant is guilty.” 

On the strength of this language, we

conclude that Hernandez pleaded guilty

voluntarily. With this plea agreement before

it, the court did not clearly err 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 Brady v. United

States, 397 U.S. 742 (1970)).

3 Cf. United States v. Williams, 20 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...)
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II.

Hernandez arguesthat the failure to comply

with 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 not affect Hernandez’s substantial

rights; thus, we disregard them. See FED. R.

CRIM. P. 11(h). 

We review compliance with rule 11

de novo. United States v. Myers, 150 F.3d

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

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

A defendant may assert rule 11 violations on

appeal regardless of whether he raised the issue in the district court. United States v.

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

Rule 11(c) requiresthe court to addressthe

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

including the nature of the charge, the

penaltiesinvolved, 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. FED. R.CRIM. P. 11(c)(1)-(5).

The court must “determin[e] that the plea is

voluntary and not the result of force or threats

or of promises apart from a plea agreement.”

FED. R. CRIM. P. 11(d). If the defendant and

the 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.

FED. R. CRIM. P. 11(e)(2). Finally, the court

must make sufficient inquiry to establish a

satisfactory factual basis for the plea. FED. R.

CRIM. P. 11(f). 

A conviction must be vacated when the

court failsto follow the procedures prescribed

by rule 11 and those variances affect

substantive rights. United States v. Watch, 7

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

agree that the court failed to follow the

procedures required by rule 11. Thus, we

must decide whether those failures affected

Hernandez’s substantial rights. See rule

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

them. 

A variance from rule 11 affects substantial

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

would have been likelyto affect his willingness

to plead guilty.” Johnson, 1 F.3d at 302.

Because the plea agreement 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 the agreement. The written

agreement independentlyinformed him, before

he appeared in court, of each of the

procedures required by rule 11. Thus, the

court’s actions did not materially affect

Hernandez’s understanding ofthe proceedings

4

(...continued)

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

not fatal if it is evident from the facts and

circumstances that defendant intended to plead

guilty, affirmatively admitted his guilt, stated that

he entered plea voluntarily, and 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.3d 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

with FED. R. CRIM. P. 32(c)(3)(C), which

requiresit to “addressthe defendant personally

and determine whether the defendant wished

to make a statement and to present any

information inmitigation ofthe 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 the sentence and REMAND for

resentencing.

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

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

where the district court failed to determine the existence of a sufficient factual 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. See, 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).