United States v. Garcia-Luna ( 2001 )


Menu:
  •                     Revised November 30, 2001
    UNITED STATES COURT OF APPEALS
    For the Fifth Circuit
    No. 00-40920
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    VERSUS
    ENCARNACION LUJANO-PEREZ,
    Defendant-Appellant.
    ------------------------------------------------------------------
    No. 00-40924
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    VERSUS
    ANTONIO MATA-ORTIZ,
    Defendant-Appellant.
    -------------------------------------------------------------------
    No. 00-40967
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    VERSUS
    JUAN TORRES-RODRIGUEZ,
    Defendant-Appellant.
    -------------------------------------------------------------------
    No. 00-40972
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    VERSUS
    JOSE EFRAIN GARCIA-LUNA,
    Defendant-Appellant.
    Appeals from the United States District Court
    for the Southern District of Texas
    November 26, 2001
    2
    Before JONES, SMITH, and DeMOSS, Circuit Judges.
    DeMOSS, Circuit Judge:
    Encarnacion Lujano-Perez, Antonio Mata-Ortiz, Juan Torres-
    Rodriguez, and Jose Efrain Garcia-Luna, all Mexican natives and
    citizens, pleaded guilty to reentering the United States after
    deportation under 8 U.S.C. § 1326.                They each received enhanced
    sentences because they had each been convicted of an aggravated
    felony prior to their deportation.              8 U.S.C. § 1326(b).      All four
    here now challenge the voluntariness of their guilty pleas because
    the trial court did not comply with the admonishment requirements
    of FED. R. CRIM. P. 11.      Because we conclude that the trial court’s
    failure to admonish the defendants of the nature of the charge, as
    required   by   Rule   11,   was    not       harmless   error,   we   vacate   the
    conviction and sentence of each defendant and remand these cases
    for further proceedings consistent with this opinion.
    I.    BACKGROUND
    Encarnacion Lujano-Perez was deported on April 29, 1999.
    Without the Attorney General’s permission, he reentered the United
    States on May 2, 1999.          Border Patrol agents arrested him in
    Laredo, Texas, on March 30, 2000, and he was indicted for unlawful
    reentry on April 18, 2000. Prior to this deportation, Lujano-Perez
    had been convicted in Florida for Attempted Sexual Battery of a
    Child.
    Antonio Mata-Ortiz was deported on October 12, 1999.                 Without
    3
    the Attorney General’s permission, he reentered the United States.
    Border Patrol agents arrested him in Laredo, Texas, on March 26,
    2000, and he was indicted for unlawful reentry on April 18, 2000.
    Prior to his deportation, Mata-Ortiz had been convicted in Denton,
    Texas, for Aggravated Assault and Murder.
    Juan Torres-Rodriguez was deported on June 24, 1999.        Without
    the Attorney General’s permission, he reentered the United States
    on March 29, 2000.    Border Patrol agents arrested him in Laredo,
    Texas, on March 29, 2000, and he was indicted for unlawful reentry
    on April, 18, 2000. Prior to his deportation, Torres-Rodriguez had
    been convicted in Palm Beach, Florida, for Cocaine Possession.
    Jose Efrain Garcia-Luna was deported on February 12, 2000.
    Without the Attorney General’s permission, he reentered the United
    States. Border Patrol agents arrested him in El Cenizo, Texas, and
    he was indicted for unlawful reentry on April 4, 2000.           Prior to
    his   deportation,   Garcia-Luna   had   been   convicted   in   Chicago,
    Illinois, for Delivery of a Controlled Substance.
    All four defendants pleaded guilty to violating 8 U.S.C.
    § 1326(b)’s prohibition on reentering the United States after
    deportation without permission from the Attorney General.         Garcia-
    Luna was found guilty at a hearing before the district court on May
    22, 2000.   The other three defendants, Lujano-Perez, Mata-Ortiz,
    and Torres-Rodriguez, were found guilty at a hearing before the
    same district court on May 23, 2000.
    The defendants each appeal here, arguing that their pleas were
    4
    rendered involuntary by the district court’s failure, at their
    rearraignment hearings, to properly admonish them of their rights
    as Rule 11 requires.          The government concedes that Rule 11 was not
    complied with, but nonetheless urges us to affirm the defendants’
    convictions because the district court’s deviation from the rule
    amounted to harmless error.
    1.   The May 22 Hearing
    On May 22, 2000, Garcia-Luna, along with five other defendants
    unrelated      to     this    case,    appeared       and       participated    in     a
    rearraignment hearing before the district court.                    The judge began
    by addressing the whole group.                 First, he told the group that if
    they could not understand the proceedings, they needed to let him
    know because silence would be interpreted as understanding.
    While still addressing the entire group, the judge then
    confirmed that (1) the defendants wished to plead guilty; (2) the
    defendants understood they were under oath; (3) the defendants’
    pleas   were    not    the    result      of    threats    or    coercion;    (4)    the
    defendants had not taken drugs or alcohol within the prior 24
    hours; (5) the defendants did not have any mental or physical
    problems    that      limited     their    ability    to    understand       what    was
    happening; (6) the defendants had not been known by any names
    different than those charged in the indictment; (7) the defendants
    understood their right to appointed counsel if they could not
    afford an attorney; (8) the defendants were satisfied with their
    5
    attorneys; (9) the defendants understood their right to a jury
    trial and the presumption of innocence; and (10) the defendants
    understood that pleading guilty waived their right to a jury trial.
    The judge then addressed the defendants individually. When he
    reached Garcia-Luna’s case, he asked the Assistant United States
    Attorney (AUSA) to present the court with the “factual basis” of
    the charge.       The AUSA described the circumstances of Garcia-Luna’s
    arrest, and       informed    the    court    that   Garcia-Luna   had    a   prior
    aggravated felony conviction for the sale of cocaine.                    The court
    confirmed the existence of the conviction with Garcia-Luna and then
    confirmed that he understood, because he was an aggravated felon,
    the maximum sentence he faced.            Finally, the court asked whether
    Garcia-Luna would like to say anything about the charge.                   Garcia-
    Luna answered with: “Everything that is being said has already been
    given to my attorney.”            The court then found him guilty.1
    2.    The May 23 Hearing
    On    May    23,   2000,     Lujano-Perez,     Mata-Ortiz,   and     Torres-
    Rodriguez, along with two other defendants unrelated to this case,
    appeared and participated in a rearraignment hearing before the
    same district court. The judge again began by addressing the whole
    group.     First, he told the group that if they could not understand
    the proceedings, they needed to let him know.                He also reminded
    1
    He was sentenced to 48 months’ incarceration at a separate
    sentencing hearing on August 10, 2000.
    6
    them that, even though they were before the court as a group, they
    had the right to an individual audience with their counsel, and
    explained that they could ask the court questions about their case.
    While still addressing the entire group, the judge then
    confirmed that (1) the defendants wished to plead guilty; (2) the
    defendants understood they were under oath; (3) the defendants had
    not failed to disclose that they had been known by any names
    different than those charged in the indictment; (4) the defendants’
    pleas were not the result of threats; (5) the defendants did not
    have any medical or psychological problems that limited their
    ability to understand what was happening; (6) the defendants
    understood their right to appointed counsel if they could not
    afford an attorney; (7) the defendants were satisfied with their
    attorneys; (8) the defendants understood their right to a jury
    trial and the presumption of innocence; and (9) the defendants
    understood that pleading guilty waived their right to a jury trial.
    The   judge   then   addressed   the   defendants   individually.
    Beginning with Torres-Rodriguez’s case, he asked the AUSA for the
    factual basis of the charge.    The AUSA described the circumstances
    of Torres-Rodriguez’s arrest, and informed the court that he had
    several prior misdemeanor convictions and possibly an arrest for
    Burglary of a Habitation.      The court asked Torres-Rodriguez if,
    aside from the allegations of previous misconduct, the rest of the
    AUSA’s statement was correct.    Torres-Rodriguez replied: “Yes, but
    I didn’t do anything.” The court again asked, and Torres-Rodriguez
    7
    confirmed, that he had returned to the United States without
    permission after being deported. Because the AUSA was unsure about
    Torres-Rodriguez’s criminal history, it advised the court that he
    should     be   admonished   about    the   maximum   penalty   range   for   a
    convicted aggregated felon.          The court confirmed he understood the
    punishment range and then found him guilty.2
    Next, the court addressed Mata-Ortiz. At the court’s request,
    the AUSA gave a brief factual statement about his arrest and
    informed the court that he had prior convictions for Aggravated
    Assault and Murder.      The judge confirmed with Mata-Ortiz that the
    factual statement was correct and that he understood the maximum
    possible sentence.      The court then found him guilty.3
    Finally, the court addressed Lujano-Perez.            The AUSA gave a
    brief factual statement about the circumstances of Lujano-Perez’s
    arrest, and informed the court that he had been convicted of
    Battery prior to his deportation. The court confirmed that Lujano-
    Perez understood the possible maximum penalty, and then found him
    guilty.4
    2
    At a sentencing hearing on August 14, 2000, the existence of a
    prior conviction for cocaine possession was confirmed, and he was
    sentenced to 46 months’ incarceration for illegal reentry. The
    court also revoked his probation that he was serving for another
    offense and ordered him to serve an additional 3 months, to run
    consecutive to his 46-month sentence.
    3
    At a sentencing hearing on August 9, 2000, he was sentenced to
    57 months’ incarceration.
    4
    At a sentencing hearing on August 9, 2000, he was sentenced to
    70 months’ incarceration.
    8
    II.     RULE 11
    Rule 11 of the Federal Rules of Criminal Procedure governs
    pleas.     And it sets forth the procedures the court must follow
    before     accepting      a   plea       of     guilty     or   nolo     contendere.
    Specifically, the court must address the defendant personally in
    open     court    to    explain,     and       ascertain    that   the    defendant
    understands, certain information and rights: the nature of the
    charge; the mandatary minimum and maximum penalties (including any
    special parole or supervised release term); the fact that the court
    is required to consider sentencing guidelines, but may depart from
    them   under     some   circumstances;         the   court’s    ability    to   order
    restitution to victims (when applicable); the defendant’s right to
    an attorney at every stage of the proceeding (and the right to have
    one appointed, if necessary); the defendant’s right to plead not
    guilty; the defendant’s right to a jury trial; the defendant’s
    right at trial to assistance of counsel, to confront and cross-
    examine adverse witnesses, and the right against compelled self-
    incrimination; that pleading guilty waives the right to trial; that
    answers related to the plea, given to the court under oath, can be
    the subject of a perjury charge; and the terms of any agreement
    waiving the right to appeal or collaterally attack the sentence.
    The court must also address the defendant personally in open court
    to determine that the plea is voluntary and not the result of
    threats or coercion. Finally, the court is required to ask whether
    the plea is the result of negotiations with the government’s
    9
    attorney.     The court may not accept a guilty plea unless it
    determines, after inquiry, that there is an adequate “factual
    basis” for the plea.
    Any variance from these procedures is subject to a harmless-
    error analysis, FED. R. CRIM. PROC. 11(h), and we review such
    challenges de novo. United States v. Cuevas-Andrade, 
    232 F.3d 440
    ,
    443 (5th Cir. 2000).         Specifically, we look to whether (1) the
    trial court failed to comply with the rule, and (2) if so, whether
    this noncompliance affected the defendant’s substantial rights such
    that    “knowledge     and   comprehension   of   the    full   and   correct
    information would have been likely to affect his willingness to
    plead guilty.”   United States v. Johnson, 
    1 F.3d 296
    , 302 (5th Cir.
    1993) (en banc).
    III.   ANALYSIS
    Here, there is no dispute that the trial court did not comply
    with Rule 11.        The record reflects that the court failed to:
    address the defendants personally in open court; explain the nature
    of the charge; explain the effect of any supervised release term;
    explain   that   the    court   was    required   to    consider   applicable
    sentencing guidelines, but could depart from those in certain
    circumstances; explain the defendants’ right to plead not guilty;
    explain the defendants’ right to be tried by a jury; explain that
    at trial the defendants had the right to an attorney; inform the
    10
    defendants of their right against self incrimination at their
    trial; address each defendant personally to ascertain that his plea
    was not the result of threats or coercion; and inquire whether the
    defendants’    guilty   pleas      were    the   result   of   negotiations     or
    discussions with the government.
    The defendants limit their complaints here to the trial
    court’s failure to explain: the nature of the charge; the right to
    plead not guilty; the right to a jury trial; the right to counsel
    at trial; and the right against compelled self incrimination.
    Accordingly, any complaints about the other variations are waived.
    See Yohey v. Collins, 
    985 F.2d 222
    , 224-25 (5th Cir. 1993).
    The Nature of the Charge
    Rule 11's requirement that defendants understand the “nature
    of the charge” against them refers to the elements of the offense.
    United States v. Calderon, 
    243 F.3d 587
    , 589 (5th Cir. 2001).
    Here, the record reflects that the elements of 8 U.S.C. § 1326, the
    statute the defendants were charged with violating, were never
    discussed during the plea hearings.              Further, the indictment was
    not read, and there were no written plea agreements.               Nonetheless,
    the government asserts that its recital of the “factual basis,”
    along   with   the   fact   that    the    charge   is    simple   and   easy   to
    understand, renders the court’s failure to explain the nature of
    the charge harmless error.         We disagree.
    This Circuit has never found that recitation of a “factual
    11
    basis,” which is a distinct and separate requirement under Rule 11,
    obliterated the need to ensure that a defendant understands the
    nature of the charge.   Rather, in every case where we have found
    the failure to explain the nature of the charge to be harmless,
    there has been evidence, other than recitation of the factual
    basis, indicating that the defendant understood the nature of the
    charge.   See, e.g., 
    Cuevas-Andrade, 232 F.3d at 444
    (holding
    failure to explain nature of charge harmless because the indictment
    was read to the defendant, the defendant signed a written plea
    agreement listing the elements of the charge, and the defendant’s
    attorney reviewed the charges with the defendant); United States v.
    Smith, 
    184 F.3d 415
    , 417 (5th Cir. 1999) (holding failure to
    explain nature of charge harmless because the indictment was read
    to the defendant, and her attorney stated that he had reviewed the
    indictment and charges with her and that she understood them and
    voluntary pleaded guilty); United States v. Reyna, 
    130 F.3d 104
    ,
    111 (5th Cir. 1997) (holding failure to explain nature of charge
    harmless because the indictment was read to the defendant, the
    defendant stated he understood the charges, and the court asked the
    defendant several questions about his understanding of the nature
    of the offense); United States v. Guichard, 
    779 F.2d 1139
    , 1145-46
    (5th Cir. 1986) (holding failure to explain nature of charge
    harmless because the indictment was read to the defendant, the
    defendant stated he had discussed charges with his attorney, and
    12
    the court inquired about the defendant’s understanding of the
    charge).
    In support of its argument, the government relies almost
    exclusively on one First Circuit case.   United States v. Martinez-
    Martinez, 
    69 F.3d 1215
    (1st Cir. 1995).      In Martinez, the court
    noted that the trial court’s failure to explain the nature of the
    charges “stretched the outer boundaries of Rule 11's express
    mandate,” but, nonetheless, it found the failure to be harmless
    error.     
    Id. at 1222.
      It explained that “[r]ather than exalting
    form over substance, on appeal we employ a ‘totality of the
    circumstances’ test to determine if a core violation has indeed
    occurred.”    
    Id. at 1220.
    The government here emphasizes the Martinez court’s statement
    that “[i]f, during the plea colloquy, the government’s statement or
    the defendant’s own version of the facts sets forth all elements
    and conduct of the offense, admission to that conduct sufficiently
    establishes the defendant’s understanding of the charge.”    
    Id. at 1220.
       However, a closer look at the case shows that, even though
    the court stated that recitation of a factual basis was enough to
    render the failure to explain the charge harmless, the court did
    not rely solely on this fact.     Rather, the court emphasized that
    (1) Martinez acknowledged twice during the plea hearing that she
    had discussed the charges with her counsel and understood them, (2)
    she waited to plead guilty until the day of trial (after months of
    13
    trial preparation), (3) she signed a written plea agreement, and
    (4) the court did ask her if she had read the charges and consulted
    with her counsel about them.       
    Id. at 1221-22.
    Here, in contrast with the facts in Martinez, it is undisputed
    that neither the judge nor the prosecutor described the elements of
    the charge; the indictment was not read; and the judge did not ask
    the defendants whether they understood the charges.           Thus, none of
    the safeguards were in place that we have in the past held might
    render a judge’s failure to personally apprise the defendant of the
    nature of the charge nonetheless harmless.        Accordingly, the sole
    basis for us to find harmless error would be that the AUSA recited
    the factual basis for the charges.
    However, Rule 11 requires both that the judge explain the
    nature of the charge, FED. R. CRIM. P. 11(c)(1), and that the judge
    ascertain that there is a factual basis for the charge.               FED. R.
    CRIM. P. 11(f). Consequently, if we were to hold, as the government
    urges us to, that wholly failing to admonish defendants of the
    nature   of   the   charge   is   harmless   whenever   the   trial    court
    establishes a factual basis, we would, in essence, obliterate the
    need to ever comply with Rule 11's express requirement that the
    court explain the nature of the charge.          This we decline to do.
    Accordingly, we hold that the trial court’s failure to admonish the
    14
    defendants of the nature of the charge was harmful error.5
    We also take this opportunity to reiterate that, although
    noncompliance with Rule 11 is subject to harmless-error review, the
    importance of adhering to all Rule 11's requirements cannot be
    overstated.   Indeed, when the harmless-error subdivision (h) was
    added to Rule 11, the Advisory Committee cautioned that:
    [S]ubdivision (h) should not be read as an
    invitation to trial judges to take a more casual
    approach to Rule 11 proceedings. It is still true,
    as the Supreme Court pointed out in McCarthy, that
    thoughtful and careful compliance with Rule 11 best
    serves   the   cause    of   fair   and   efficient
    administration of criminal justice, as it “will
    help reduce the great waste of judicial resources
    required to process the frivolous attacks on guilty
    plea convictions that are encouraged, and are more
    difficult to dispose of, when the original record
    is inadequate. It is, therefore, not too much to
    require that, before sentencing defendants to years
    of imprisonment, district judges take the few
    minutes necessary to inform them of their rights
    and to determine whether they understand the action
    they are taking.”
    FED. R. CRIM. P. 11 (advisory committee’s notes to 1983 amendment)
    5
    We note that this result is consistent with the Advisory
    Committee Notes to Rule 11, which state that:
    There would not be harmless error under subdivision (h)
    where, for example, as in McCarthy, there had been
    absolutely no inquiry by the judge into defendant’s
    understanding of the nature of the charge and the
    harmless error claim of the government rests upon nothing
    more than the assertion that it may be “assumed”
    defendant possessed such understanding merely because he
    expressed a desire to plead guilty.
    FED. R. CRIM. P. 11 (advisory committee’s notes to 1983 amendment)
    (citing McCarthy v. United States, 
    394 U.S. 459
    (1969)).
    15
    (quoting 
    McCarthy, 394 U.S. at 472
    ).
    IV.    CONCLUSION
    Because our conclusion that the trial court’s failure to
    explain the nature of the charge mandates reversal, we need not
    reach the defendants’ contention that other portions of the plea
    colloquy were also deficient.   The conviction and sentence of each
    defendant is vacated and remanded to the trial court for further
    proceedings consistent with this opinion.
    16
    EDITH H. JONES, dissenting:
    With due respect, my colleagues’ conclusion that a single
    technical Rule 11 omission by the district court is not harmless error
    returns us to the law as it was nine years ago, before this court took
    Rule 11(h) seriously.6   Until the en banc decision in United States
    v. Johnson, 
    1 F.3d 296
    -302, (5th Cir. 1993) (en banc), this court
    evaluated Rule 11 compliance in terms of three “core concerns,” the
    omission of any one of which would automatically result in the vacatur
    of a guilty plea.    United States v. Dayton, 
    604 F.2d 931
    (5th Cir.
    1979) (en banc).    One of Dayton’s “core concerns,” the one at issue
    here, was that the court must address a defendant concerning the
    nature of the charge against him.      Fed. Crim. Rule Proc. 11(c)(1).
    Johnson involved another of the core concerns, but this court rejected
    Dayton’s per se approach in favor of the harmless error analysis
    specified by Rule 11(h).   The Johnson test, given lip service by the
    majority, identifies reversible Rule 11 error only if the court’s non-
    compliance affected the defendant’s substantial rights such that his
    “knowledge and comprehension of the full and correct information would
    6
    Appellants also complain that the district court omitted from
    its guilty plea advice other information required by Rule 11, e.g.
    the defendant’s right to plead not guilty and proceed to a jury
    trial, to counsel at trial, to confront witnesses, and not to
    incriminate himself. The majority do not discuss these omissions.
    I would find them insufficient to overturn the guilty plea, based
    on the whole record and the analysis in United States v. Cuevas-
    Andrade, 
    232 F.3d 440
    (5th Cir. 2000).
    17
    have been likely to affect his willingness to plead 
    guilty.” 1 F.3d at 302
    .
    The majority opinion dwells on the trial court’s admitted
    non-compliance     with   Rule   11,   but   it   never   discusses   how   the
    appellants’ substantial rights were violated by the court’s failure
    to read them their indictments or otherwise explain the charge of
    illegal reentry.    18 U.S.C. § 1326.        There is no basis in the record
    for a conclusion that, had appellants been specifically informed at
    the plea colloquy of the nature of a § 1326 violation, they would not
    have pled guilty and would have insisted on going to trial.
    The majority assert that the “sole” basis for a finding of
    harmless error is the Assistant U.S. Attorney’s recitation of the
    factual basis of the charge at the guilty plea colloquy.                    This
    assertion suffers from two flaws.       It misstates Johnson, which holds
    that the entire trial court record must be consulted to evaluate the
    effect of a Rule 11 
    error. 1 F.3d at 302
    .    It also misapprehends the
    record.   These appellants certainly knew what charge they were
    pleading guilty to.
    The crime of illegal reentry is not recondite.          It consists
    of a person’s being found in the United States without the permission
    of the Attorney General after having been previously deported.              All
    four appellants responded affirmatively to the court’s introductory
    query whether they wished to plead guilty.                The factual resumés
    recited by an    AUSA at the court’s request embody the simple elements
    of a § 1326 violation for each appellant.
    18
    As to Garcia-Luna, the AUSA stated:
    Mr. Garcia Luna is a native and citizen of Mexico, Your
    Honor. He was encountered by Border Patrol wading the – or
    crossing the Rio Grande River at a location near El Cenizo,
    Texas, at about 10:00 in the morning on March the 9th,
    2000, entering without immigration inspection. He has –
    records show that he has been previously deported from
    Laredo on February the 12th, 2000. He has – records show
    that he has not applied for or received permission from the
    attorney general to re-enter the United States. We believe
    Mr. Garcia is an aggravated felon. His criminal history
    includes a 1995 conviction for sale of cocaine. He was
    sentenced to 12 years in that offense.
    Garcia-Luna admitted his crime in the plea colloquy.
    The facts pertaining to Torres-Rodriguez, as recited by the
    AUSA, are as follows:
    The defendant is a citizen and national of Mexico.       On
    March 29th of this year he was apprehended by Border Patrol
    at the river banks here in Laredo, Texas.      He had just
    crossed. On June 24, 1999, he was deported back to Mexico
    through Laredo. This was subsequent to several misdemeanor
    convictions for theft out of Travis County.        It also
    appears that he was arrested for a burglary of a
    habitation. I don’t know what has happened with that case,
    Your Honor.    I can’t tell from my file.       He has not
    received permission to re-enter or reapply for readmission
    to enter the United States from the attorney general.
    Torres admitted that the factual basis was true.
    The factual basis for Mata was given by the government:
    His true name, Your Honor, is Turruviartez-Sanchez. He is
    a native and citizen of the Republic of Mexico. He was
    apprehended by Border Patrol agents performing line-watch
    duty near Laredo Community College on the 26th of March of
    this year at about 10:00 p.m. just at the time of this
    entry. He was previously deported through Laredo on the
    12th of October of 1999. And he had neither applied for
    nor received permission of the attorney general to re-enter
    after deportation.
    We believe he qualifies as an aggravated felon.       His
    criminal history includes a 1992 aggravated assault and a
    19
    1995 murder intending serious bodily injury for which he
    served time in the Texas Department of Criminal Justice
    Institution.
    Mata admitted the truth of the facts concerning his reentry.
    The Government gave the following factual basis for Lujano-
    Perez:
    Mr. Lujano-Perez is also a native and citizen of the
    Republic of Mexico, Your Honor. He was apprehended on the
    30th of March of this year at 11:00 p.m. by Border Patrol
    agents. They were following up on a tip that the defendant
    was an illegal alien living in the Santa Fe subdivision of
    Laredo, Texas, and working at a restaurant called Las
    Asadas. He confirmed his illegal status and admitted he
    had last entered the United States on the 2nd of May of
    1999 by making a false claim of United States citizenship
    at the port of entry, bridge number two, here in Laredo.
    He was last deported on the 29th of April through Laredo
    and has neither applied for nor received permission of the
    attorney general to re-enter after that deportation.
    [emphasis added.]
    We do believe he qualifies as an aggravated felon. His
    criminal history includes a battery for which he received
    a 15-year sentence and a number of prior crimes for which
    the dispositions are not known by the investigating
    officers.
    Lujano acknowledged the truth of the facts regarding his illegal
    entry.    Based on the simplicity of the charge, and the appellants’
    understanding,   emphasized   by   the   court,   that   they   could   seek
    clarification at any time, it is a close question whether these
    factual resumés alone sufficiently identified the nature of the
    charge.   This court has noted that, “[n]either Rule 11 nor the case
    law specifies the minimum that the district court must do to ‘inform
    the defendant . . . of the nature of the charge’”.       United States v.
    Reyna, 
    130 F.3d 104
    , 110 (5th Cir. 1997).
    20
    The record is rife with additional confirmation of the
    appellants’ knowing intent to plead guilty to the crime with which
    they were charged.    All of the appellants were represented by the
    Federal Public Defender.    This court should be able to rely on the
    public defender’s expertise in advising their clients.               We should
    assume that where, as here, each defendant admitted to the judge that
    he committed the acts that form the basis of an illegal re-entry, he
    did so on the advice of competent counsel.           None of the defendants
    raised a peep when the court asked if they were satisfied with their
    counsel and if they were under any compulsion to plead guilty.              In
    fact, defense counsel raised no objections to the factual resumés
    recited by the AUSA’s, to the clients’ assent to the resumés, or to
    the crime summaries contained in each appellant’s PSR.           No defense
    counsel called the trial court’s attention to its omissions from the
    precise Rule 11 “script.” More to the point, no defense counsel moved
    in the trial court to withdraw his client’s guilty plea on the basis
    of ignorance or involuntariness.
    Finally,   each   of   the    defendants   appended   an    explicit
    admission of guilt to his PSR in order to qualify for a 3-level
    reduction in the sentencing guidelines, a reduction granted by the
    court.7   Since none of the defendants received anywhere near the
    7
    One example of these statements was executed on behalf of
    Lujano-Perez:
    I, Encarnacion Lujano-Perez, admit that I am an alien that
    entered the United States without obtaining permission from the
    Attorney General of the United States.     I admit that I was
    21
    maximum 20-year statutory sentence for his admitted offense, and all
    were sentenced at the bottom of the guidelines range, there is no
    objective    basis    for    dissatisfaction   with     the   outcome   of   the
    prosecution.   Indeed, it cannot be emphasized too strongly that none
    of the appellants contends he would have insisted on going to trial
    if he had been explicitly informed by the court of the “nature” of a
    section 1326 charge.
    Rather than examine the objective circumstances surrounding
    the trial court’s errors, the majority express fear that allowing the
    factual resumé       to   fulfill   the function   of   the   nature-of-charge
    explanation will “obliterate” a particular requirement of Rule 11.
    But their holding threatens to “obliterate” Rule 11(h) and the Johnson
    harmless error test: harmless error comes into play whenever a trial
    court has “obliterated” some facet of Rule 11.
    The majority suggest in a footnote that their analysis
    comports with the Advisory Committee Notes to Rule 11, which eschew
    a harmless error claim where “the government rests upon nothing more
    than the assertion that it may be ‘assumed’ defendant possessed such
    understanding [of the charge against him] merely because he expressed
    a desire to plead guilty.” Majority Opn. at n.5, citing Fed. R. Crim.
    P. 11 (advisory committee notes to 1983 amendment).            But as has been
    deported before I re-entered the United States.            I was found by
    a U.S. Border Patrol Agent in Laredo, Texas.
    And at sentencing, Garcia-Luna apologized for having “entered
    illegally into the country.”
    22
    demonstrated, the government does not rely solely on these appellants’
    expressed desire to plead guilty, but upon many other indicia of their
    knowledge and understanding that they committed the federal crime of
    illegal re-entry. The same Advisory Committee Notes also caution that
    Rule 11 does not prescribe a “litany or other ritual which can be
    carried out only by word-for-word adherence to a set ‘script.’”   
    Id. See also
    United States v. Henry, 
    113 F.3d 37
    , 41 (5th Cir 1997) (Rule
    11 does not require ritual adherence to its precise contours for a
    guilty plea to be upheld.)
    This court has frequently addressed the sufficiency of Rule
    11 colloquies following Johnson.    In a few decisions, we have found
    that a defendant’s substantial rights were violated by errors such as
    serious, prejudicial misinformation about the punishment range or the
    omission of a minimum prison term.8     No post-Johnson case I have
    found, published or unpublished, isolates one technical omission and
    holds it a reversible error without assessing the objective, likely
    effect on the appellant’s willingness to plead guilty in light of the
    whole trial court record. On the contrary, even a series of technical
    omissions has been found harmless under the circumstances.     United
    States v. Cuevas-Andrade, 
    232 F.3d 440
    (5th Cir. 2000). And in United
    States v. Vasquez-Bernal, 
    197 F.3d 169
    (5th Cir. 1999), where the
    8
    See United States v. Herndon, 
    7 F.3d 55
    (5th Cir. 1993);
    United States v. Whyte, 
    3 F.3d 129
    (5th Cir. 1993); see also United
    States v. Suarez, 
    155 F.3d 521
    (5th Cir. 19998) (defendant’s
    statement during rearraignment that he was “only guilty of
    possession” suggested he did not understand that he was charged
    with possession of cocaine with intent to distribute).
    23
    trial court failed to expressly advise an illegal re-entrant of the
    applicable range of punishment, this court held that without proof,
    or even an allegation, that the omission affected his guilty plea, the
    Rule 11 complaint was meritless.   See also United States v. Moralez-
    Sosa, 
    191 F.3d 586
    , 587-88 (5th Cir. 1999) (“Sosa has never alleged
    that full compliance with Rule 11 would have affected his decision to
    plead guilty, nor does the record support such a suggestion.”).
    The purpose of these appeals is difficult to discern. While
    I heartily agree that it is better practice for the district court to
    adhere closely to Rule 11, I also find it inconceivable that these
    appellants will not plead guilty upon remand. The public defender has
    made no effort to demonstrate substantial harm to these appellants’
    rights from the trial court’s technical Rule 11 errors.   Moreover, we
    were assured by an AUSA at oral argument that procedures are now in
    place to advise the district court of omissions in Rule 11 colloquies.
    As we said in Vasquez-Bernal, “the federal public defender must have
    better things to do.”   I respectfully DISSENT.
    24