### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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 H ernandez appeals his guilty plea convictions for one count of c o n s piracy to distribute at least 500 grams of methamphetamine and 5 kilograms of cocaine and one count of conspi r a c y to commit money laundering. He also appeals the district court’s imposition of a $2,000,000 f

o rf e iture money judgment for which he was jointly and severally liable with co-conspirators. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D May2, 201 2 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-50580 Document: 00511841930 Page: 1 Date Filed: 05/02/2012No. 11-50580

Regarding his conviction, Hernandez contends that the di s trict c ourt erred by failing to advise him during his guilty plea hearing of the possible forfeiture applicable in his case. See F E D
. R. C R I M
. P. 11(b)(1)(J). Plain e rr or 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 appel l a n t 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 eff ect 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 fo rf e iture before he pleaded guilty. His indictment, which he admitted reviewing with his attorney before his rearraignment, contained a notice of th e 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 n e ver disputed the forfeiture. Hernandez’s assertions that he “may have believed” the government would not p u r sue the forfeiture and that the possibility of a $2,000,000 money judgment “may have b een a concern” are insufficient to satisfy his burden under plain error revie w . 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, a l t e rnatively, 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 t ime 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 , 2 Case: 11-50580 Document: 00511841930 Page: 2 Date Filed: 05/02/2012No. 11-50580

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

or otherwise, in imposi n g a f orfeiture 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 b e e n 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 un d e r p l ain 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

. 3 d 7 5 0 , 7 56 (5th Cir. 2007) (“An error is considered plain, or obvious, only if the error is clear under existing law.”). AFFIRMED.

3 Case: 11-50580 Document: 00511841930 Page: 3 Date Filed: 05/02/2012