     Case: 14-40300       Document: 00513151210         Page: 1     Date Filed: 08/12/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 14-40300
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                           August 12, 2015
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

THOMAS GARCIA, JR., also known as Thomas Garcia,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:13-CR-994-6


Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
       Thomas Garcia, Jr., challenges his guilty-plea conviction and sentence
for possession, with intent to distribute, 100 kilograms or more of marijuana,
in violation of 21 U.S.C. § 841 & 18 U.S.C. § 2. In challenging his conviction,
he contends his guilty plea was not knowing and voluntary because, prior to
his pleading guilty, the district court misstated the statutory minimum and
maximum terms of imprisonment. Therefore, Garcia asserts: he pleaded


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                 No. 14-40300

guilty without being correctly advised of the statutory range of punishment;
and the court’s failure violates Federal Rule of Criminal Procedure 11(b)(1).
      Because he did not object to the claimed Rule 11 error in district court,
review is for plain error. E.g., United States v. Vonn, 535 U.S. 55, 59 (2002).
Under that standard, Garcia must show a forfeited plain (clear or obvious)
error that affected his substantial rights. Puckett v. United States, 556 U.S.
129, 135 (2009). If he does so, we have the discretion to correct the error, but
should do so only if it seriously affects the fairness, integrity, or public
reputation of the proceedings. Id. Regarding Garcia’s being required to show
his substantial rights were affected, and for the reasons that follow, the record
does not support a determination that, but for the court’s initial misstatement
regarding the statutory penalties, it is reasonably probable that Garcia, who
was later advised by the court of the correct statutory minimum and maximum
sentences, as well as by other sources, would not have pleaded guilty. See
United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
      Rule 11 requires a district court to “inform the defendant of, and
determine that the defendant understands . . . any maximum possible penalty,
including imprisonment, fine, and term of supervised release[, and] any
mandatory minimum penalty”. Fed. R. Crim. P. 11(b)(1)(H), (I). Although the
court initially informed Garcia incorrectly about his penalty range, it
ultimately admonished him properly about his sentencing exposure. After the
court asked Garcia whether he understood the penalties and intended to alter
his guilty plea in the light of the revised admonishment, Garcia stated he
understood his sentencing exposure, and the revised penalties did not change
his intention to plead guilty. See Blackledge v. Allison, 431 U.S. 63, 73-74
(1977) (noting that sworn statements in open court are entitled to a “strong
presumption of verity”). Thus, the court did not violate Rule 11 and the guilty



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                               No. 14-40300

plea was knowing and voluntary. See Fed. R. Crim. P. 11(b)(1)(H), (I); Boykin
v. Alabama, 395 U.S. 238, 243–44 (1969).
     AFFIRMED.




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