USA v. Efrain Portillo-Caballero


UNPUBLISHED OPINION FILED. [12-41354 Affirmed ] Judge: TMR , Judge: EHJ , Judge: ECP Mandate pull date is 07/31/2014 for Appellant Efrain Portillo-Caballero [12-41354]

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Case: 12-41354 Document: 00512693924 Page: 1 Date Filed: 07/10/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 12-41354 Summary Calendar FILED July 10, 2014 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. EFRAIN PORTILLO-CABALLERO, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 7:11-CR-1198-1 Before REAVLEY, JONES, and PRADO, Circuit Judges. PER CURIAM: * Efrain Portillo-Caballero pleaded guilty to being an alien found unlawfully in the United States after deportation, and he was sentenced to a 46-month term of imprisonment. Portillo-Caballero contends that the district court failed to inform him at rearraignment, as is required by Federal Rule of Criminal Procedure 11(b)(1)(A), that the Government had the right to use against him any statement that he gave under oath in a prosecution for perjury 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-41354 Document: 00512693924 Page: 2 Date Filed: 07/10/2014 No. 12-41354 or false statement. The Government concedes that Portillo-Caballero did not receive the admonishment under Rule 11(b)(1)(A) but contends that the district court’s omission did not affect Portillo-Caballero’s substantial rights. Because Portillo-Caballero did not raise this issue in the district court, we review only for plain error. See United States v. Vonn, 535 U.S. 55, 58-59 (2002). Portillo-Caballero has not shown a reasonable probability that, but for the error, he would not have entered his guilty plea. See United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). AFFIRMED. 2

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