IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-40123

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERTO FLOREZ-GARCIA,

Defendant-Appellant.

_____________________________________________

Appeal from the United States District Court for the Southern District of Texas L-99-CR-1116-ALL-S _____________________________________________ December 13, 2001

Before JOLLY, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Roberto Florez-Garcia was indicted on one count of illegal

entry after deportation and subsequent to a conviction for an

aggravated felony under

(b)(2). The case proceeded

to trial, but, at the conclusion of the government’s case-in-chief,

Florez-Garcia entered a plea of guilty, without the benefit of a

plea agreement. He was later sentenced to 125 months in prison and

a three-year term of supervised release. On appeal, Florez-Garcia

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. argues that the district court erred in failing to advise him at

the plea hearing of the nature of the charges against him, of the

district court’s power to depart from the Sentencing Guidelines,

and of the effect of a term of supervised release. He argues that

the errors affected his substantial rights and were not harmless,

requiring reversal. We find that the district court erred in

failing to advise Florez-Garcia of the nature of the charges

against him, and that the error affected his substantial rights.

FACTUAL AND PROCEDURAL BACKGROUND

On December 3, 1999 Florez-Garcia was discovered on a freight

train in Texas by agents of the United States Border Patrol. The

agents allegedly questioned Florez-Garcia about his citizenship.

He responded that he was from Mexico and failed to produce

identification documents. Florez-Garcia was arrested as an

undocumented alien. Shortly thereafter he stated that he was born

in Chihuahua, Mexico, and that he last entered the United States

without inspection by wading or swimming across the Rio Grande

River near Laredo, Texas.

Records of the Immigration and Naturalization Service

reflected that Florez-Garcia had been deported from the United

States three times before. In addition, penitentiary packets

introduced into evidence at trial indicated that Florez-Garcia had

previously been convicted for possession of cocaine and, under

aliases on three separate occasions, for burglary of a habitation.

2 As a defense to the indictment for illegal reentry following

a conviction for an aggravated felony, Florez-Garcia alleged that

he was a United States citizen, born in California. However, he

was unable to provide any documentation to support his claim of

citizenship, and the government was unable to find any record

indicating that he was a citizen.

The case proceeded to trial and, at the close of the

government’s case, Florez-Garcia pleaded guilty, without the

benefit of a plea agreement. The district court conducted the plea

hearing on the spot, and, after advising Florez-Garcia of his

rights and asking Florez-Garcia whether he had been coerced to

plead guilty, the court accepted the plea. Although the indictment

was read at the start of the jury trial, during the plea colloquy

the district court did not describe the nature of the charges to

Florez-Garcia, nor read the indictment to him, nor give him an

opportunity to ask questions about the nature of the charges

against him. Also, the district court did not inform him of the

effect that revocation of supervised release could have on his

sentence.

At the sentencing hearing, Florez-Garcia’s attorney informed

the judge that Florez-Garcia had a problem with the sentencing

hearing in its entirety, because he claimed that he had been forced

to plead guilty, that his previous attorney had pressured him, and

that he thought he was pleading guilty to perjury. In response to

questioning by the district court, Florez-Garcia asserted that he

3 was a United States citizen so he could not be pleading guilty to

illegal entry; he steadfastly maintained that he had been born in

Los Angeles. However, noting that there was no evidence supporting

the claim of citizenship, the district court stated: “I think it’s

a path we’ve trod many times before. I am, not at this hearing,

going to go into issue of guilty [sic] or innocence I think. We

have a plea of guilty. I am not..., based on anything I have

heard, going to set that aside.”

DISCUSSION

I. The district court’s failure to advise Florez-Garcia of the

nature of the charges against him constitutes reversible

error.

Because a guilty plea results in the waiver of several federal

constitutional rights, such pleas must be entered intelligently and

voluntarily. Boykin v. Alabama,

,

(1969). Thus, before accepting a guilty plea, the

district court must address the defendant in open court and

determine that the defendant understands "the nature of the charge

to which the plea is offered." Fed. R. Crim. P. 11(c)(1).

Rule 11(c) errors to which the appellant has objected at the

district court level are reviewed on appeal under a harmless error

standard. See Fed. R. Crim. P. 11(h).1 “Objections and the

1 Harmless error has been the standard of review applied in numerous cases involving Rule 11 errors. However, in a recent case involving an alleged Rule 11(f) error to which the appellant had not objected at the district court, this Court applied a

4 grounds therefor should be made with particularity.” U.S. v.

Anderson,

(5th Cir. 1982). In this case, Florez-

Garcia effectively objected to the district court’s failure to

inform him of the nature of the charges at sentencing, when he

stated that he thought he was pleading guilty to perjury. As is

obvious from its statements at the sentencing hearing, the district

court was aware of the objection, and chose to dismiss it. Thus,

on appeal the standard of review is harmless error. And in this

case, the appellant and the government are in agreement that the

harmless error standard applies.

In the context of Rule 11 violations, harmless error analysis

is composed of two questions: “(1) Did the sentencing court in fact

vary from the procedures required by Rule 11, and (2) if so, did

such variance affect substantial rights of the defendant?” U.S. v.

Johnson,

, 298 (5th Cir. 1993) (en banc). A substantial

right has been violated if "the defendant's knowledge and

comprehension of the full and correct information would have been

likely to affect his willingness to plead guilty." Id. at 302.

plain error standard. See U.S. v. Marek,

(5th Cir. 2001) (en banc). The United States Supreme Court has granted certiorari to review the question of which standard applies in cases where the appellant failed to object to a Rule 11 error. See U.S. v. Vonn,

(2001). This issue, and the question of whether Marek applies not only to Rule 11(f) but also to Rule 11(c) errors, need not be addressed in this opinion, as Florez-Garcia objected to the Rule 11(c) error at the sentencing hearing.

5 The district court in the present case varied from the

procedures required by Rule 11(c) in that it did not inform Florez-

Garcia of the nature of the charges against him. It is possible

that the district court relied on the fact that the indictment was

read at the start of the jury trial, on the same day that the plea

colloquy occurred. Traditionally, to ensure that the defendant

understands the nature of the charges against him, this Court has

required that the district court personally inform the defendant of

the nature of the charges. See U.S. v. Shacklett,

(5th Cir. 1991). On the other hand, “in cases involving

simple charges, ‘a reading of the indictment, followed by an

opportunity given the defendant to ask questions about it, will

usually suffice’ to inform the defendant of the nature of the

charge.” U.S. v. Cuevas-Andrade,

, 444 (5th Cir.

2000)(quoting U.S. v. Dayton,

(5th Cir. 1979) (en

banc)). But in Florez-Garcia’s case the district court did not

describe the nature of the charges personally, or direct any other

person to read the indictment at the time of the plea.

The district court’s variance from Rule 11 procedures was not

a harmless error. Here, no plea agreement or factual resume was

presented in the Rule 11 colloquy, and the prosecutor did not offer

a factual basis to support the plea. In this case, the reading of

the indictment at the start of the jury trial was insufficient to

cure the error, as the plea colloquy marked a distinct shift from

6 the jury trial. The defendant could reasonably have believed that

his plea addressed different and lesser charges than those made at

trial. As is evident from Florez-Garcia’s statements at

sentencing, he did not understand the nature of the charges to

which he was pleading guilty. From his repeated assertions of U.S.

citizenship, it appears likely that “knowledge and comprehension of

the full and correct information would have... affect[ed] his

willingness to plead guilty." Johnson, 1 F.3d at 302. Thus, the

district court’s failure to inform Florez-Garcia of the nature of

the charges against him constitutes harmful and, therefore,

reversible error.

II. The district court’s failure to inform Florez-Garcia of the

effect of supervised release constitutes harmless error

During the plea colloquy the district court did not to advise

Florez-Garcia of the effect that a term of supervised release could

have on his total possible term of incarceration. Thus, the

district court varied from the procedures required by Rule 11(c),

which provides that “[b]efore accepting a plea of guilty..., the

court must address the defendant personally in open court and

inform the defendant of... the maximum possible penalty provided by

law, including the effect of any... supervised release term.” Fed.

R. Crim. P. 11(c)(1).

However, this Court has held that, if the maximum term of

incarceration under the actual sentence of imprisonment and

7 supervised release is less than the maximum term of incarceration

allowed by law and cited by the district court, then the failure to

inform the defendant of the effect of supervised release is

harmless error. See Cuevas-Andrade, 232 F.3d at 444; U.S. v.

Hekimain,

(5th Cir. 1992). During the plea

colloquy Florez-Garcia was informed that the maximum penalty he

would face was a term of incarceration of 20 years, a possible fine

of $250,000, and a term of supervised release of not more than

three years. In fact, he received a lesser penalty of 125 months’

imprisonment and a three year term of supervised release.

Revocation of supervised release would result in an additional 24

months’ imprisonment. See

(b)(2),

(a)(3), 3583(e)(3). The maximum term of incarceration under

the actual sentence was less than the maximum term allowed by law,

and of which the defendant was informed during the plea colloquy.

Hence, the error was harmless.

III. The district court’s failure to inform Florez-Garcia of the

court’s power to depart from the sentencing guidelines is

harmless error.

Rule 11 requires that the district court inform the defendant

of “the fact that the court is required to consider any applicable

sentencing guidelines but may depart from those guidelines under

some circumstances.” Fed. R. Crim. P. 11(c)(1). Florez-Garcia

8 contends that the district court did not properly admonish him as

to the court’s power to depart from the sentencing guidelines.

In fact, the district court did not fully explain either the

fact that the court was required to consider the guidelines, or

that the court could depart from them in sentencing.2 The district

court’s statements during the plea colloquy did not refer to the

ranges provided for in the guidelines; instead the court only

pointed out that, although several factors were usually taken into

account in sentencing, the sentence was at the judge’s discretion.

Thus, there was a variance from the procedures required by Rule 11.

However, the court’s statements should have made Florez-Garcia

aware that the judge could sentence him up to the maximum provided

for by law. In addition, the district court did not, in fact,

depart from the sentencing guidelines in deciding Florez-Garcia’s

sentence. Hence, the court’s failure to explain the court’s power

to depart from the sentencing guidelines is harmless. See Cuevas-

Andrade, 232 F.3d at 445; Hekimain,

(5th

Cir. 1992).

Florez-Garcia does not deny that the district court’s failures

to explain the effect of revocation of supervised release and the

2 The district court stated that “under the so-called sentencing guidelines, ... the Court sentences you on the basis of a number of factors, including the crime to which you plead guilty, your prior criminal record, information you provided the probation office.... But... in the end, the decision as to sentence is the Court’s to make.”

9 court’s power to depart from the sentencing guidelines, standing

alone, were harmless. However, he argues that when combined with

the court’s failure to inform him of the nature of the charges

against him, these errors affected his substantial rights. As

stated earlier, the district court’s failure to inform Florez-

Garcia of the nature of the charges against him constitutes harmful

error in this case because it is likely that, had he understood the

nature of these charges, Florez-Garcia would not have pleaded

guilty. But it appears unlikely that, had he understood the effect

of revocation of supervised release and the mechanics of

sentencing, Florez-Garcia would have changed his mind about

pleading guilty; that decision was apparently driven by the fact

that he thought he was pleading guilty to perjury, a lesser charge

than that for which he was being tried. Consequently, even

considered in light of the district court’s failure to describe the

nature of the charges, the failure to explain the effect of

revocation of supervised release and to explain the court’s power

to depart from the sentencing guidelines was harmless error. Thus

the only error that affected Florez-Garcia’s substantial rights is

the court’s failure to explain the nature of the charges against

him.

CONCLUSION

Although the district court committed several Rule 11 errors

when taking Florez-Garcia’s plea, only one of these errors is

10 reversible. We know that in courts that are especially busy there

is always the temptation to cut corners. But still, words from the

Seventh Circuit are applicable to appeals such as this one:

“[c]ompliance with Rule 11 is easily achieved. Both judge and

prosecutor can use check-off forms (which are readily available);

it is surprising and regrettable that the court continues to see

appeals of this kind, where a district judge, a prosecutor, and

defense counsel all seem oblivious to the risk.” U.S. v. Driver,

(7th Cir. 2001).

For the aforementioned reasons, Florez-Garcia's conviction and

judgment are hereby VACATED and the case REMANDED to the district

court with instructions that Florez-Garcia be allowed to withdraw

his guilty plea.

11