United States v. Rangel-Silva ( 1999 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-40554
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ADRIAN RANGEL-SILVA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(B-97-CR-502-1)
April 8, 1999
Before DAVIS, DUHÉ and PARKER, Circuit Judges.
PER CURIAM:*
Adrian Rangel-Silva pleaded guilty to being present in the
United States, without permission, following deportation, in
violation of 8 U.S.C. §§ 1326(a), (b). The district court
sentenced him to a 46-month term of imprisonment. Rangel-Silva
timely filed this appeal, in which he argues that his conviction
must be reversed because the record of the guilty plea proceedings
is insufficient to allow for meaningful appellate review. He
*
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this opinion should not be published and is not precedent except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.
asserts that we cannot evaluate, by reviewing the rearraignment
record, his personal responses to the district court’s questions
and cannot discern whether he understood the rights he was waiving.
Furthermore, he contends that this error is not harmless because he
is being denied his statutory right to appeal. Rangel-Silva’s
contentions are without merit. We affirm.
In the instant case, the district court conducted Rangel-
Silva’s rearraignment simultaneously with several other defendants.
The district court stated on the record that it would conduct the
proceedings in Spanish because the defendants and the attorneys
understood Spanish and that the interpreter would translate the
proceedings into English for transcription. The district court
stated on the record that each defendant indicated that he wanted
the proceedings to be conducted in Spanish. The district court
asked for objections from counsel, and the court received no
objections. The district court stated on the record that it would
follow a procedure in which it would elicit a response from each
individual defendant and that the record would show the response.
The district court stated on the record that “[i]t is incumbent
upon counsel to show that the court is in error.” The district
court, after most of its inquiries, states for the record that each
defendant had answered in the affirmative or in the negative. The
district court did not elicit individual responses from each of the
defendants for all the inquiries required by FED.R.CRIM.P. 11. The
district court did, however, obtain on the record individual
responses from the defendants when it asked them whether they
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understood what they were being accused of doing2, when it
explained the potential penalty that the defendants faced and when
it read the actual charges against each defendant. The district
court obtained an individual plea of guilty from Rangel-Silva and
obtained an individual response from him regarding the lack of any
plea agreement with the Government.
A guilty plea involves the waiver of several constitutional
rights, and thus, it must be intelligent and voluntary. FED. R.
CRIM. P. 11 requires the district court to follow certain
procedures in determining whether a defendant’s guilty plea is made
knowingly and voluntarily. We employ a two-part “harmless error”
analysis to determine whether the district court has complied with
Rule 11: (l) whether the sentencing court varied from the
procedures required by Rule 11; and (2) if so, whether such
variance affected the defendant’s substantial rights.3
The procedure about which Rangel-Silva complains raises
concerns about possible error under Rule 11 and applicable case
law. However, because he failed to object to the procedure even
when the district court explicitly invited objections, we will not
exercise our discretion to correct any possible error. See United
States v. Nufio-Ortiz, No. 98-40370 (5th Cir., March 25, 1999)
(unpublished opinion).
Rangel-Silva also argues that the district court erred when it
2
Boykin v. Alabama, 395 U.S. 238 (1969).
3
United States v. Johnson, 1 F.3d 296, 298 (5th Cir. 1993)(en
banc).
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failed to recognize its authority to depart downward from the
sentencing guidelines based on his “cultural assimilation” in the
American society. This court “may only review a trial court’s
refusal to grant a downward departure from the guidelines if the
refusal was based on a violation of the law.” United States v.
Palmer, 122 F.3d 215, 222 (5th Cir. 1997). Rangel-Silva argues that
the district court denied the downward departure because it
concluded as a matter of law that it lacked authority to depart
downward on this basis.
At best, the record is ambiguous as to whether the district
court denied the downward departure because it determined that
Rangel-Silva did not warrant a downward departure or whether the
court determined that it had no authority to depart on that basis.
Where the record is ambiguous, we presume the court recognized its
authority. See United States v. Nelson, 54 F.3d 1540, 1544 (10th
Cir. 1995); United States v. Bailey, 975 F.2d 1028, 1035 (4th Cir.
1992); United States v. Helton, 975 F.2d 430, 434 (7th Cir. 1992);
United States v. Garcia-Garcia, 927 F.2d 489, 491 (9th Cir. 1991);
United States v. Russell, 870 F.2d 18, 20 (1st Cir. 1989). Under
these circumstances, the district court’s refusal to depart is not
reviewable.
AFFIRMED.
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