USA v. Juan Nunez-Rubio

Filing

UNPUBLISHED OPINION FILED. [13-51009 Affirmed, 13-51028 Affirmed, 13-51036 Affirmed ] Judge: WED , Judge: EBC , Judge: GJC. Mandate pull date is 12/10/2014 for Appellants Juan Cesar Enrique Nunez-Rubio and Juan Enrique Nunez-Rubio [13-51009, 13-51028, 13-51036]

Case: 13-51009

Document: 00512842922

Page: 1

Date Filed: 11/19/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-51009
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
November 19, 2014

UNITED STATES OF AMERICA,
Plaintiff-Appellee

Lyle W. Cayce
Clerk

v.
JUAN CESAR ENRIQUE NUNEZ-RUBIO, also known as Juan Enrique
Rubio,
Defendant-Appellant
Cons. w/No. 13-51028
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN ENRIQUE NUNEZ-RUBIO
Defendant-Appellant

Case: 13-51009

Document: 00512842922

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Cons. w/No. 13-51036
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JUAN CESAR ENRIQUE NUNEZ-RUBIO
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:13-CR-102-1
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Juan Cesar Enrique Nunez-Rubio pleaded guilty to a new offense of
illegal reentry following deportation, in violation of 8 U.S.C. § 1326(b)(2), and
pleaded true to violating conditions of his two terms of supervised release. In
this consolidated appeal, he challenges his guilty plea conviction and his
revocation sentences.
Nunez-Rubio argues that the district court failed to comply with some of
the requirements of Rule 11 of the Federal Rules of Criminal Procedure at his
rearraignment on the new illegal reentry offense. Because Nunez-Rubio did
not object in the district court to its failure to comply with Rule 11, we review
for plain error. See United States v. Vonn, 535 U.S. 55, 59 (2002). To establish
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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plain error, a defendant 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). To establish that his substantial rights were affected, the defendant
“must show a reasonable probability that, but for the [Rule 11] error, he would
not have entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74,
83 (2004). If he makes such a showing, this court has the discretion to correct
the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Puckett, 556 U.S. at 135.
To the extent the district court committed clear or obvious error by
failing to inform Nunez-Rubio that he faced a maximum term of three years of
supervised release and the mandatory $ 100 special assessment, he has not
demonstrated that the errors affected his substantial rights. See Dominguez
Benitez, 542 U.S. at 83. His presentence report (PSR) stated that he faced a
maximum of three years of supervised release and the $100 special
assessment. Nunez-Rubio did not object to the PSR, seek to withdraw his
guilty plea before sentencing, or object when the district court imposed the
three-year term of supervised release or the $100 special assessment.

A

defendant’s failure to take issue with his potential sentence once he was
properly advised suggests that the district court’s failure to inform him of his
sentencing exposure was not a significant factor in his decision to plead guilty.
United States v. Solis, 410 F. App’x 825, 827 (5th Cir. 2011); see also United
States v. Vasquez-Bernal, 197 F.3d 169, 171 (5th Cir. 1999) (looking to the PSR
to determine whether the district court’s failure to inform the defendant of the
applicable sentencing range affected the defendant’s substantial rights).
Because Rule 11 does not require the district court to explain to the defendant
“how supervised release operates,” Nunez-Rubio has not shown that the

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district court erred by not providing such an explanation. See United States v.
Marquez, 428 F. App’x 317, 318 (5th Cir. 2011).
Nunez-Rubio asserts that the district court violated Rule 11(b)(1)(M) by
failing (1) to explain its obligation to independently calculate the applicable
guidelines range, (2) to generally ensure that he would understand how the
guidelines calculation would affect the sentence imposed, or (3) to admonish
him as to the Sentencing Guidelines, the court’s obligations under those
Guidelines, and its discretion to depart therefrom. Only the third of these is
clearly required by Rule 11(b)(1)(M). To the extent the district court clearly or
obviously deviated from the requirements of Rule 11(b)(1)(M), Nunez-Rubio
has not shown a reasonable probability that but for such error, he would not
have pleaded guilty. See Dominguez Benitez, 542 U.S. at 83.
It was not the court’s duty under Rule 11(b)(1)(M) to inform Nunez-Rubio
at rearraignment of the enhancements, points, or sentence he faced under the
Guidelines. Moreover, Nunez-Rubio acknowledged at rearraignment that he
had spoken to his attorney “about how the sentencing guidelines might apply
in [his] case or how much jail time [he] might be looking at.” He successfully
argued at sentencing for a departure and a variance from the guidelines.
Finally, he was informed at rearraignment that he faced a statutory maximum
sentence of 20 years in prison. Thus, he was fully aware of the consequences
of his plea. See United States v. Rivera, 898 F.2d 442, 447 (5th Cir. 1990)
(holding that a defendant is aware of the consequences of his plea for
sentencing purposes and the plea is voluntary as long as he understands the
length of time he might possibly receive).
With regard to his revocation sentences, Nunez-Rubio contends for the
first time on appeal that the district court procedurally erred by not giving
reasons for rejecting his non-frivolous arguments for a sentence outside the
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guidelines and by not giving reasons for imposing consecutive terms of
imprisonment upon revoking the two terms of supervised release that he had
been serving concurrently. In the sentencing context, to demonstrate that
clear or obvious error affected his substantial rights, “the defendant must
prove that the error affected the sentencing outcome.”

United States v.

Whitelaw, 580 F.3d 256, 262-63 (5th Cir. 2009) (internal quotation marks and
citations omitted); see also United States v. Mondragon-Santiago, 564 F.3d 357,
365 (5th Cir. 2009). Nunez-Rubio did not object to the calculation of the
revocation guidelines range of imprisonment or move for a downward
departure or variance from that range. He explained the reasons for his past
and instant offenses and, in his letter, asked the court to run the revocation
sentences concurrent with his new illegal reentry sentence. However, he did
not make any arguments for a sentence outside of the revocation guidelines or
for his revocation sentences to be served concurrent to each other. Thus, the
district court did not need to say more and, even if it did, that need is not clear
or obvious in these circumstances. See Rita v. United States, 551 U.S. 338,
356-57 (2007).
Even assuming that the district court’s failure to state the reasons was
error that was clear or obvious, Nunez-Rubio has not shown that the error
affected his substantial rights. The district court imposed a within guidelines
sentence, and Nunez-Rubio cannot show that an explanation would have
changed his sentence. See Whitelaw, 580 F.3d at 262-63; Mondragon-Santiago,
564 F.3d at 365.
The district court’s judgments are AFFIRMED.

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