United States v. Hernandez-Hernandez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-41432
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MARIO ALBERTO HERNANDEZ-HERNANDEZ,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
(L-99-CR-648-1)
_________________________
November 10, 2000
Before JOLLY, JONES, and SMITH,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Mario Hernandez-Hernandez (“Hernan-
dez”), a citizen of Mexico, pleaded guilty to
illegal reentry into the United States following
deportation in violation of 8 U.S.C. § 1326.
He and his counsel signed a plea agreement
admitting his guilt. Hernandez appeals,
claiming that his guilty plea was not voluntary,
that the district court violated the requirements
of FED. R. CRIM. P. 11, and that the court
failed to allow him to make a statement in
mitigation of his sentence as required by FED.
R. CRIM. P. 32(c). We conclude that
Hernandez intended to plead guilty and that
the failure to comply with rule 11 is harmless
* 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determined that this opinion should not be
published and is not precedent except under the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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error but that, as the government concedes,
the rule 32(c) violations require us to vacate
the sentence and remand it.
I.
Hernandez asserts he did not intend to
plead guilty and that the court neither entered
a guilty plea nor explicitly accepted his plea.
The record shows, however, that the district
court accepted Hernandez’s plea by entering a
judgment of conviction on December 3, 1999.
We review the acceptance of a guilty plea for
clear error, United States v. Rivas, 85 F.3d
193, 194 (5th Cir. 1996), and the voluntariness
of the plea de novo, United States v. Reyna,
130 F.3d 104, 111 (5th Cir. 1997).
A defendant must plead guilty knowingly
and voluntarily.2 The guilty plea “is itself a
conviction; nothing remains but to give
judgment and determine sentence.” Boykin v.
Alabama, 395 U.S. 238, 242 (1969). If the
defendant does not affirmatively show that he
intelligently and voluntarily intends to plead
guilty, the conviction cannot stand. See id.
The district court indisputably violated the
rule 11 procedures designed to act as a
prophylactic against precisely this type of
challenge to a conviction. Regardless of the
procedural errors, however, the record
contains a written plea agreement signed by
Hernandez, his counsel, and the prosecutor.
Hernandez affirmed in court that he
understood the agreement and its contents.
Even though the court did not instruct him in
open court as per rule 11, this fact in and of
itself does not indicate that Hernandez did not
“possess[] an understanding of the law in
relation to the facts.” McCarthy v. United
States, 394 U.S. 459, 466 (1969)(finding such
understanding an essential component of a
knowing and voluntary plea).
The existence of a written plea agreement
and the fact that Hernandez did not assert ei-
ther (a) that he is innocent or (b) that he would
not have waived his right to trial had he
received the benefit of the rule 11 warnings
lend credence to the district court’s finding
that Hernandez intentionally pleaded guilty.
On appeal, however, Hernandez contests the
validity of his plea because he never affirmed
in open court that he would plead guilty of his
own free will, that he understood the range of
punishment, or that he understood that he
waived his right to a jury trial.3
Hernandez, however, signed a written plea
agreement containing this information and
delineating the range of punishment and the
specific rights he would have at trial that he
waived by signing the agreement. The
agreement additionally states that “[t]he
defendant acknowledges that no threats have
been made against the defendant and that the
defendant is pleading guilty freely and
voluntarily because the defendant is guilty.”
On the strength of this language, we
conclude that Hernandez pleaded guilty
voluntarily. With this plea agreement before
it, the court did not clearly err either in
determining that Hernandez intended to enter
a guilty plea or in accepting that plea.4
2 McChesney v. Henderson, 482 F.2d 1101,
1106 (5th Cir. 1973) (citing Brady v. United
States, 397 U.S. 742 (1970)).
3 Cf. United States v. Williams, 20 F.3d 125,
133 (5th Cir. 1994).
4 Cf. United States v. Grandia, 18 F.3d 184,
187 (2d Cir. 1994) (concluding that failure to ask
(continued...)

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II.
Hernandez argues that the failure to comply
with the requirements of rule 11 rendered his
guilty plea void. We disagree. Even though
the court was lax in accepting the plea, these
“variances from the procedures required” by
rule 11 do not affect Hernandez’s substantial
rights; thus, we disregard them. See FED. R.
CRIM. P. 11(h).
We review compliance with rule 11
de novo. United States v. Myers, 150 F.3d
459, 461 (5th Cir. 1998) (citing United States
v. Scott, 987 F.2d 261, 264 (5th Cir. 1993)).
A defendant may assert rule 11 violations on
appeal regardless of whether he raised the is-
sue in the district court. United States v.
Suarez, 155 F.3d 521, 524 (5th Cir. 1998).
Rule 11(c) requires the court to address the
defendant personally to determine that he un-
derstands and to inform him of certain facts,
including the nature of the charge, the
penalties involved, the right to an attorney, the
right to a jury trial and the rights attendant to
trial, and the waiver of those rights effected by
the guilty plea. FED. R. CRIM. P. 11(c)(1)-(5).
The court must “determin[e] that the plea is
voluntary and not the result of force or threats
or of promises apart from a plea agreement.”
FED. R. CRIM. P. 11(d). If the defendant and
the government have reached a written plea
agreement, the court must advise the
defendant that he has no right to withdraw his
guilty plea if the court does not accept the
prosecutor’s sentencing recommendation.
FED. R. CRIM. P. 11(e)(2). Finally, the court
must make sufficient inquiry to establish a
satisfactory factual basis for the plea. FED. R.
CRIM. P. 11(f).
A conviction must be vacated when the
court fails to follow the procedures prescribed
by rule 11 and those variances affect
substantive rights. United States v. Watch, 7
F.3d 422, 428-29 (5th Cir. 1993). The parties
agree that the court failed to follow the
procedures required by rule 11. Thus, we
must decide whether those failures affected
Hernandez’s substantial rights. See rule
11(h).5 Because they did not, we disregard
them.
A variance from rule 11 affects substantial
rights if “the defendant’s knowledge and com-
prehension of the full and correct information
would have been likely to affect his willingness
to plead guilty.” Johnson, 1 F.3d at 302.
Because the plea agreement contained all the
information the court must impart under rule
11, the court’s actions did not affect Hernan-
dez’s decision to plead guilty.
Hernandez answered affirmatively when
asked, during the plea hearing, whether he un-
derstood the agreement. The written
agreement independently informed him, before
he appeared in court, of each of the
procedures required by rule 11. Thus, the
court’s actions did not materially affect
Hernandez’s understanding of the proceedings
4(...continued)
defendant “How do you plead?” in open court is
not fatal if it is evident from the facts and
circumstances that defendant intended to plead
guilty, affirmatively admitted his guilt, stated that
he entered plea voluntarily, and fully believed he
was pleading guilty).
5 See also United States v. Henry, 113 F.3d
37, 40 (5th Cir. 1997) (citing United States v.
Johnson, 1 F.3d 296, 297 (5th Cir. 1993)
(en banc)).

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or willingness to plead.6
III.
The government agrees with Hernandez’s
contention that we must vacate and remand his
sentence because the court failed to comply
with FED. R. CRIM. P. 32(c)(3)(C), which
requires it to “address the defendant personally
and determine whether the defendant wished
to make a statement and to present any
information in mitigation of the sentence.” “‘If
the district court fails to provide the rule 32
right of allocution, resentencing is required.’”
Myers, 150 F.3d at 463 (quoting United States
v. Dominguez-Hernandez, 934 F.2d 598, 599
(5th Cir. 1991)).
Therefore, we AFFIRM the conviction but
VACATE the sentence and REMAND for
resentencing.
6 Cf. United States v. Adams, 961 F.2d 505,
510-12 (5th Cir. 1992) (holding the error harmless
where the district court failed to determine the ex-
istence of a sufficient factual basis for the guilty
plea but the record available to the appellate court
independently supported it). Other circuits have
held that written plea agreements containing infor-
mation the district court failed to impart under rule
11 may cleanse the harm from the error. See, e.g.,
United States v. Cross, 57 F.3d 588, 591-92 (7th
Cir. 1995) (finding harmless error where the
defendant signed a plea agreement stating that the
plea was voluntary); United States v. Parkins, 25
F.3d 114, 117-18 (2d Cir. 1994) (finding harmless
error where the defendant signed a plea agreement
that described the nature of the charge).

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