US v. Ramiro Aguilar

Filing 920090723

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-5145

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. RAMIRO GOMEZ AGUILAR, Defendant ­ Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:06-cr-00018-RLV-CH-1)

Submitted:

July 9, 2009

Decided:

July 23, 2009

Before WILKINSON and Senior Circuit Judge.

NIEMEYER,

Circuit

Judges,

and

HAMILTON,

Affirmed by unpublished per curiam opinion.

Leslie C. Rawls, Charlotte, North Carolina, for Appellant. Edward R. Ryan, Acting United States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Ramiro Gomez Aguilar pled guilty pursuant to a plea agreement to one count of conspiracy to possess with the intent to distribute five kilograms 846 of cocaine, in violation district the of

21 U.S.C. sentenced

§ § 841(b)(1)(A), Aguilar term to 120

(2006).

The

court

months' by

imprisonment, Aguilar

minimum on

imprisonment

required

statute.

contends

appeal that, as a result of the magistrate judge's error at the Fed. R. Crim. P. 11 colloquy, * his guilty plea was not voluntary. We affirm. Because Aguilar did not move in the district court to withdraw his guilty plea on the basis that the magistrate

judge's error rendered his plea involuntary, his challenge is reviewed for plain error. See United States v. Martinez, 277 To establish plain error,

F.3d 517, 524-25 (4th Cir. 2002).

Aguilar must show that: (1) an error was made; (2) the error is plain; and (3) the error affects his substantial rights. States v. Olano, 507 U.S. 725, 732 (1993). United

Even if Aguilar

makes this showing, however, correction of the error lies within our discretion, which we will not exercise unless the error

"seriously affects the fairness, integrity or public reputation

Aguilar expressly consented to plead guilty before the magistrate judge.

*

2

of

judicial

proceedings."

Id.

(internal

quotation

marks,

citations, and alteration omitted). Under Fed. R. Crim. P. 11(b)(1)(I), a district court is required, the before accepting and a defendant's that he guilty plea, to any P. the

advise

defendant mandatory To

ensure

understands R. the the F.3d Crim. Rule,

applicable 11(b)(1)(I). court must

minimum its

penalty. obligation the

Fed. under of 25

satisfy

"clearly

advise"

defendant v. Good,

applicable 218, 223

minimum

penalty.

United

States

(4th Cir. 1994). In this case, Aguilar was subject to a minimum term of ten years' imprisonment and a maximum term of life imprisonment. See 21 U.S.C. § 841(b)(1)(A). At the Rule 11 colloquy, the

magistrate judge advised Aguilar that the "maximum penalty for this offense is not less than ten years nor more than life imprisonment." to discharge Aguilar claims that the magistrate judge failed his obligation to clearly advise him of the

applicable mandatory minimum penalty because this description of the applicable prison terms is that confusing the and inaccurate. judge's

Assuming

without

deciding

magistrate

description of the applicable minimum penalty was error that was plain, Aguilar is not entitled to relief because the error did not impact his substantial rights. 51 F.3d 400, 402-03 (4th Cir. 1995). 3 See United States v. Goins,

An error impacts a defendant's substantial rights if it is so prejudicial as to affect the outcome of the

proceedings. context, a

See Martinez, 277 F.3d at 532. defendant meets this standard

In the guilty plea by showing that he Id.

would not have pled guilty but for the Rule 11 error.

After review of the record, we conclude that Aguilar fails to make this showing. Accordingly, we discern no plain error. We

therefore affirm the district court's judgment.

We dispense

with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process. AFFIRMED

4