United States v. Clemente Valdez, Jr. ( 2020 )


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  •      Case: 19-40739      Document: 00515500254         Page: 1    Date Filed: 07/23/2020
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 19-40739
    FILED
    July 23, 2020
    Summary Calendar
    Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    CLEMENTE VALDEZ, JR.,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Eastern District of Texas
    USDC No. 1:19-CR-21-1
    Before JOLLY, ELROD, and GRAVES, Circuit Judges.
    PER CURIAM: *
    Clemente Valdez, Jr., appeals his conviction and sentence for escape
    from custody, in violation of 18 U.S.C. § 751(a). Valdez argues that reversal is
    warranted because (1) the voluntariness of his guilty plea and the district
    court’s compliance with Federal Rule of Criminal Procedure 11 cannot be
    ascertained due to omissions in the rearraignment transcript and (2) there is
    a conflict between the original sentencing transcript, which reflected a
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 19-40739     Document: 00515500254       Page: 2   Date Filed: 07/23/2020
    No. 19-40739
    sentence of 14 months of imprisonment, and the judgment, which imposed a
    sentence of 24 months of imprisonment.
    The Government requests summary affirmance on the second issue
    because, it asserts, “the position of one of the parties is clearly right as a matter
    of law so that there can be no substantial question as to the outcome of the
    case.” Groendyke Transp., Inc. v. Davis, 
    406 F.2d 1158
    , 1162 (5th Cir. 1969).
    The Government does not cite a case that forecloses Valdez’s claim. See United
    States v. Houston, 
    625 F.3d 871
    , 873 n.2 (5th Cir. 2010). Rather, Valdez’s
    second argument is rendered moot by the district court’s correction of the
    transcript to eliminate the discrepancy and the clerk’s order supplementing
    the record with the corrected transcript. Summary affirmance is therefore
    improper.
    As Valdez notes, the first seven minutes of the hearing are missing from
    the rearraignment transcript.       However, “a merely technically incomplete
    record, involving no substantial or significant omissions, will not be sufficient
    to work a reversal.” United States v. Selva, 
    559 F.2d 1303
    , 1306 n.5 (5th Cir.
    1977). Moreover, reversal is not warranted unless the omissions from the
    technically incomplete record affected the defendant’s substantial rights or
    caused “any error other than harmless error.” United States v. Upshaw, 
    448 F.2d 1218
    , 1224 (5th Cir. 1971).
    In this case, the record includes a significant portion of the
    rearraignment transcript, the minutes of the hearing, and findings of fact and
    recommendations on the plea. The omissions from the transcript are not
    substantial and significant. See United States v. Pace, 
    10 F.3d 1106
    , 1125 (5th
    Cir. 1993). Thus, the omissions must be anything other than harmless to
    warrant a reversal. See 
    Upshaw, 448 F.2d at 1223-24
    .
    2
    Case: 19-40739     Document: 00515500254     Page: 3   Date Filed: 07/23/2020
    No. 19-40739
    The record shows that Valdez intended to plead guilty, that he admitted
    committing the acts set out in the factual basis, that he understood the nature
    of the proceedings, and that he was knowingly and voluntarily entering his
    plea.    Notably, he did not object to the magistrate judge’s findings and
    recommendation on the guilty plea, nor did he attempt to withdraw his plea.
    Thus, we are satisfied that any omissions from the transcript were harmless.
    See 
    Upshaw, 448 F.2d at 1224
    .
    Accordingly, the judgment of the district court is AFFIRMED.         The
    Government’s motion for summary affirmance is DENIED.
    3