United States v. Valdez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-40739
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CLEMENTE VALDEZ, JR.,

Defendant-Appellant

Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:19-CR-21-1

Before JOLLY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:
*

Clemente Valdez, Jr., appeals his conviction and sentence for escape
from custody, in violation of 18 U.S.C. § 751(a). Valdez argues that reversal is
warranted because (1) the voluntariness of his guilty plea and the district
court’s compliance with Federal Rule of Criminal Procedure 11 cannot be
ascertained due to omissions in the rearraignment transcript and (2) there is
a conflict between the original sentencing transcript, which reflected a

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
July 23, 2020

Lyle W. Cayce
Clerk
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No. 19-40739
2
sentence of 14 months of imprisonment, and the judgment, which imposed a
sentence of 24 months of imprisonment.
The Government requests summary affirmance on the second issue
because, it asserts, “the position of one of the parties is clearly right as a matter
of law so that there can be no substantial question as to the outcome of the
case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
The Government does not cite a case that forecloses Valdez’s claim. See United
States v. Houston, 625 F.3d 871, 873 n.2 (5th Cir. 2010). Rather, Valdez’s
second argument is rendered moot by the district court’s correction of the
transcript to eliminate the discrepancy and the clerk’s order supplementing
the record with the corrected transcript. Summary affirmance is therefore
improper.
As Valdez notes, the first seven minutes of the hearing are missing from
the rearraignment transcript. However, “a merely technically incomplete
record, involving no substantial or significant omissions, will not be sufficient
to work a reversal.” United States v. Selva, 559 F.2d 1303, 1306 n.5 (5th Cir.
1977). Moreover, reversal is not warranted unless the omissions from the
technically incomplete record affected the defendant’s substantial rights or
caused “any error other than harmless error.” United States v. Upshaw, 448
F.2d 1218, 1224 (5th Cir. 1971).
In this case, the record includes a significant portion of the
rearraignment transcript, the minutes of the hearing, and findings of fact and
recommendations on the plea. The omissions from the transcript are not
substantial and significant. See United States v. Pace, 10 F.3d 1106, 1125 (5th
Cir. 1993). Thus, the omissions must be anything other than harmless to
warrant a reversal. See Upshaw, 448 F.2d at 1223-24.
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No. 19-40739
3
The record shows that Valdez intended to plead guilty, that he admitted
committing the acts set out in the factual basis, that he understood the nature
of the proceedings, and that he was knowingly and voluntarily entering his
plea. Notably, he did not object to the magistrate judge’s findings and
recommendation on the guilty plea, nor did he attempt to withdraw his plea.
Thus, we are satisfied that any omissions from the transcript were harmless.
See Upshaw, 448 F.2d at 1224.
Accordingly, the judgment of the district court is AFFIRMED. The
Government’s motion for summary affirmance is DENIED.
Case: 19-40739 Document: 00515500254 Page: 3 Date Filed: 07/23/2020