USA v. Hector Cruz-Esteban

Filing

UNPUBLISHED OPINION FILED. [10-11066 Affirmed] Judge: TMR , Judge: JLD , Judge: EBC. Mandate pull date is 06/08/2011 for Appellant Hector Cruz-Esteban [10-11066]

Case: 10-11066 Document: 00511481882 Page: 1 Date Filed: 05/18/2011

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit
FILED
No. 10-11066
Summary Calendar

May 18, 2011
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
HECTOR CRUZ-ESTEBAN,
Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:10-CR-28-1

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Hector Cruz-Esteban appeals from his guilty-plea conviction for being
found in the United States after having previously been removed following a
felony conviction. He argues for the first time on appeal that the district court
failed to advise him of five of his rights as required under Federal Rule of
Criminal Procedure 11(b)(1)(B)-(F). The transcript confirms that the district
court did not advise Cruz-Esteban of those rights. Because he did not object to
these Rule 11 errors in the district court, we review them for plain error only.
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.

Case: 10-11066 Document: 00511481882 Page: 2 Date Filed: 05/18/2011
No. 10-11066
United States v. Vonn, 535 U.S. 55, 58-59 (2002). To establish that a Rule 11
violation amounts to plain error, a defendant must demonstrate a “reasonable
probability” that he would not have pleaded guilty “but for the error.” United
States v. Dominguez Benitez, 542 U.S. 74, 76 (2004).
Most of the rights omitted by the district court were set forth in either the
written plea agreement or the district court’s order accepting the guilty plea,
both of which Cruz-Esteban acknowledged as correct. He therefore cannot show
that his substantial rights were affected by those particular omissions.
Moreover, for all of the challenged omissions, he has not demonstrated a
reasonable probability that he would not have pleaded guilty if he had been
advised of those rights.

See Dominguez Benitez, 542 U.S. at 76.

therefore failed to show reversible plain error regarding this issue.
The judgment of the district court is AFFIRMED.

2

He has