IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50580

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DANIEL GELAICO HERNANDEZ, also known as Daniel Hernandez,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:10-CR-242-3

Before WIENER, STEWART, and HAYNES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Daniel Gelaico Hernandez appeals his guilty plea

convictions for one count of conspiracy to distribute at least 500 grams of

methamphetamine and 5 kilograms of cocaine and one count of conspiracy to

commit money laundering. He also appeals the district court’s imposition of a

$2,000,000 forfeiture money judgment for which he was jointly and severally

liable with co-conspirators.

United States Court of Appeals

Fifth Circuit

F I L E D

May 2, 2012

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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No. 11-50580

Regarding his conviction, Hernandez contends that the district court erred

by failing to advise him during his guilty plea hearing of the possible forfeiture

applicable in his case. See FED. R. CRIM. P. 11(b)(1)(J). Plain error review

applies to this issue because Hernandez did not object on this ground in the

district court. See United States v. Vonn, 535 U.S. 55, 59 (2002). To show plain

error, the appellant must show a forfeited error that is clear or obvious and that

affects his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). 

If the appellant makes such a showing, we have the discretion to correct the

error but only if it seriously affects the fairness, integrity, or public reputation

of judicial proceedings. Id. To demonstrate an effect on his substantial rights

based on the district court’s failure to comply with Rule 11(b)(1)(J), Hernandez

“must show a reasonable probability that, but for the error, he would not have

entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).

The record reflects that Hernandez was aware of the possible forfeiture

before he pleaded guilty. His indictment, which he admitted reviewing with his

attorney before his rearraignment, contained a notice of the government’s

demand for the forfeiture. The forfeiture was also brought to light by his

presentence report and two motions by the government after his rearraignment,

and Hernandez never disputed the forfeiture. Hernandez’s assertions that he

“may have believed” the government would not pursue the forfeiture and that

the possibility of a $2,000,000 money judgment “may have been a concern” are

insufficient to satisfy his burden under plain error review. See Dominguez

Benitez, 542 U.S. at 83.

Regarding forfeiture, Hernandez contends that the district court erred by

issuing a forfeiture judgment against him, and, alternatively, that there is no

evidence to support a forfeiture amount exceeding the $234,840 for which he was

personally accountable in the conspiracy. As these challenges are raised for the

first time on appeal, plain error review applies to them as well. See United

States v. Gasanova, 332 F.3d 297, 300 (5th Cir. 2003); United States v. Badeaux,

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No. 11-50580

42 F.3d 245, 246 (5th Cir. 1994). The district court did not commit error, plain

or otherwise, in imposing a forfeiture judgment against Hernandez. See 18

U.S.C. § 982(a)(1); 21 U.S.C. § 853(a)(1), (2).

Additionally, Hernandez fails to cite any authority for his contention that

the forfeiture against him should have been limited to the amount corresponding

to his personal involvement in the conspiracy and has thus waived the issue. 

See United States v. Olguin, 643 F.3d 384, 399 (5th Cir.), cert. denied, 132 S. Ct.

432 (2011), and cert. denied, 132 S. Ct. 439 (2011). In any event, his bare

argument is insufficient to satisfy his burden under plain error review of

showing that the district court committed clear or obvious error in its application

of § 853(a)(1) and (2) and § 982(a)(1). See Olguin, 643 F.3d at 399; United States

v. Salinas, 480 F.3d 750, 756 (5th Cir. 2007) (“An error is considered plain, or

obvious, only if the error is clear under existing law.”).

AFFIRMED.

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