IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-10482 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TIMOTEO OCHOA,

Defendant-Appellant. -------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:99-CR-409-3-R -------------------- February 15, 2002 Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Timoteo Ochoa appeals his guilty-plea conviction for

possession with the intent to distribute two pounds of

methamphetamine. See

;

(a)(1). He

argues that his substantial rights were affected by alleged

variances with the dictates of FED. R. CRIM. P. 11, and thus, his

guilty-plea conviction should be vacated. We AFFIRM.

Ochoa’s primary contention is that the magistrate judge**

failed to apprise Ochoa in open court and determine that Ochoa

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. ** Ochoa entered his guilty plea before the magistrate judge. See United States v. Dees,

(5th Cir. 1997). No. 00-10482 -2-

understood the waiver-of-appeal provision in the plea agreement.

See RULE 11(c)(6). RULE 11(c)(6) requires the court, before

accepting the guilty plea, to inform the defendant and determine

that the defendant understands “any provision in a plea agreement

waiving the right to appeal or to collaterally attack the

sentence.” A review of rearraignment reveals that the

magistrate judge failed to comply with this rule. However, no

sentencing error is asserted on appeal. Cf. United States v.

Teeter,

(1st Cir. 2001) (RULE 11(c)(6) error

results in appellate court reviewing sentencing issues). Thus,

the error is harmless. See RULE 11(h); United States v. Johnson,

(5th Cir. 1993) (en banc).

Ochoa also argues that RULE 11 error ensued from the court

reporter’s failure to record the summary of the plea agreement

given by the Assistant U.S. Attorney and from the magistrate

judge’s failure to determine whether Ochoa’s decision to plead

guilty resulted from prior discussions between the parties. Our

independent review detects no variance with RULE 11. See United

States v. Gonzalez,

, 358 n.1 (5th Cir. 2001).

AFFIRMED.