United States v. Molina ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40137
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOEL MOLINA,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-1057-ALL
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October 29, 2002
Before JONES, DUHÉ, and CLEMENT, Circuit Judges.
PER CURIAM:1
Joel Molina appeals from his conviction by guilty plea of
illegal reentry. He argues, for the first time on appeal, that the
district court’s failure to admonish him regarding the
applicability of the Sentencing Guidelines and regarding the
unavailability of parole at his plea hearing constituted plain
error. When an appellant allows an error in a guilty-plea colloquy
to pass without objection, this court reviews for plain error only.
United States v. Vonn, 122 S. Ct. 1043, 1046 (2002). To establish
1
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that this opinion should not be published and is not precedent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.
plain error, an appellant bears the burden to show: (1) there is
an error (2) that is clear or obvious and (3) that affects his
substantial rights. United States v. Calverley, 37 F.3d 160,
162-64 (5th Cir. 1994) (en banc) (citing United States v. Olano,
507 U.S. 725, 731-37 (1993)). If these factors are established,
the decision to correct the forfeited error is within the sound
discretion of the court, and the court will not exercise that
discretion unless the error seriously affects the fairness,
integrity or public reputation of judicial proceedings. Olano, 507
U.S. at 735-36.
The district court erred by failing to advise Molina that it
was required to consider the Sentencing Guidelines when imposing
sentence and that it could depart from the guidelines under certain
circumstances. See FED. R. CRIM. P. 11(c)(1). The district court
was not required to advise Molina that he was not eligible for
parole.
The district court’s error did not affect Molina’s substantial
rights. Molina has not shown any likelihood that he would have
pleaded not guilty and proceeded to trial had he been properly
advised. See United States v. Vasquez-Bernal, 197 F.3d 169, 171
(5th Cir. 1999), cert. denied, 528 U.S. 1130 (2000).
Molina does not allege that his possible psychiatric
difficulties, which first came to light in his presentence report
(PSR), affected his ability to understand the proceedings, and it
2
is not self-evident from the mention of the disorders in the PSR
that such might be the case. To the extent that Molina may seek to
argue that his disorders affected his mental state at the time of
his offense, any such argument is irrelevant to the validity of his
guilty plea.
AFFIRMED.
3