     Case: 09-40180     Document: 00511258805          Page: 1    Date Filed: 10/08/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           October 8, 2010
                                       No. 09-40180
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

EDUARDO GUERRA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 7:07-CR-144-7


Before JONES, Chief Judge, and REAVLEY and HAYNES, Circuit Judges.
PER CURIAM:*
        Eduardo Guerra appeals the total 217-month sentence he received after
pleading guilty to two counts of a twelve-count second superseding indictment
for knowingly possessing with the intent to distribute more than 500 grams of
cocaine (Count Nine) and possessing one or more firearms in furtherance of a
drug trafficking crime (Count Eleven). Guerra argues that he was misled and
therefore prejudiced by an error in the citation of the federal statute in the
second superseding indictment. He also argues that the district court com-



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40180

mitted a significant procedural error that substantially affected his rights when
it did not correctly admonish him that Count Eleven would subject him to a
mandatory minimum 10-year sentence.
      Count Eleven of the second superseding indictment alleged that Guerra
      did knowingly possess . . . a [sic] Olympic Arms, Model MFR.223,
      semi-automatic assault short barrel rifle, Serial Number SM9579,
      . . . in furtherance of a drug trafficking crime for which he may be
      prosecuted in a court of the United States, namely, conspiracy to
      possess with intent to distribute a controlled substance . . . .

            In violation of Title 18, United States Code, Section
      924(c)(1)(A)(i).
Guerra’s possession of a short-barreled rifle subjected him to a 10-year
mandatory minimum sentence pursuant to § 924(c)(1)(B)(i). Guerra asserts that
the indictment’s failure to reference § 924(c)(1)(B)(i) misled him to his prejudice
because he pleaded guilty believing that he was subject to only a five-year
mandatory minimum pursuant to § 924(c)(1)(A)(i).
      We review the validity of an indictment de novo. See United States v.
Threadgill, 172 F.3d 357, 373 (5th Cir. 1999). An indictment must meet minimal
constitutional standards, and its sufficiency is measured by whether “(1) each
count contains the essential elements of the offense charged, (2) the elements are
described with particularity, without any uncertainty or ambiguity, and (3) the
charge is specific enough to protect the defendant against a subsequent
prosecution for the same offense.” Id. at 366; see also United States v. Gonzales,
436 F.3d 560, 569 (5th Cir. 2006) (noting that an indictment meets minimum
constitutional standards when it alleges each element of the crime in such a
manner as to allow the accused both to prepare a defense and later to invoke the
double jeopardy clause).
      Neither an error in a citation or the omission of a citation is a ground to
dismiss an indictment or reverse a conviction “[u]nless the defendant was misled

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                                  No. 09-40180

and thereby prejudiced.” F ED. R. C RIM. P. 7(c)(2). The written statements,
rather than the citations to statutes, have long been considered the controlling
features of an indictment. See United States v. Garcia, 954 F.2d 273, 276 (5th
Cir. 1992). Furthermore, our review of an indictment is governed by practical
rather than technical considerations, and we will not reverse where the
deficiencies are minor and the defendant has not been prejudiced. United States
v. Chappell, 6 F.3d 1095, 1099 (5th Cir. 1993).
      Count Eleven of the second superseding indictment closely tracked the
language of § 924(c)(1) by specifically alleging that Guerra possessed, in addition
to other weapons, a semi-automatic short-barreled rifle in furtherance of a drug
trafficking crime (conspiracy to possess with intent to distribute a controlled
substance) for which he could be prosecuted. Accordingly, the indictment was
constitutionally sufficient in that it unambiguously described the essential
elements of the offense and was precise enough to protect Guerra from a
subsequent prosecution for the same crime. See Threadgill, 172 F.3d at 366.
Moreover, Guerra could not have reasonably been misled to his prejudice
because Count Eleven explicitly and adequately alleged facts consistent with the
offense listed in § 924(c)(1)(B)(i), namely that Guerra possessed a short-barreled
rifle during the commission of a drug trafficking crime. See United States v.
Boyett, 923 F.2d 378, 378 n.1 (5th Cir. 1991). Guerra pleaded guilty to the facts
as written in the indictment, and thus was put on sufficient notice that he could
be subject to a mandatory minimum of 10 years for possession of a short-
barreled rifle. See United States v. Quintero, 872 F.2d 107, 111 (5th Cir. 1989).
      During rearraignment, the district court initially began to admonish
Guerra that he was subject to a 10-year mandatory minimum for Count Eleven
due to his possession of a short-barreled rifle.      However, the Government
intervened and suggested that Guerra was subject to not less than five years in



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                                  No. 09-40180

prison for Count Eleven. Confusion about the applicable range of punishment
ensued and, after much discussion, the district court eventually admonished
Guerra that he could be sentenced to between five years and life in prison for
Count Eleven. Guerra argues that the district court’s incorrect admonishment
as to the applicable mandatory minimum sentence substantially affected his
rights.
      Guerra did not raise the issue of procedural error before the district court;
accordingly, review is for plain error only. United States v. Lopez-Velasquez,
526 F.3d 804, 806 (5th Cir. 2008). To establish that a violation of Federal Rule
of Criminal Procedure 11 affects substantial rights, a defendant must
demonstrate a “reasonable probability” that he would not have pleaded guilty
“but for the error.”    United States v. Dominguez Benitez, 542 U.S. 74, 76,
124 S. Ct. 2333, 2336 (2004). Even assuming, arguendo, that the district court
committed an obvious error, Guerra cannot demonstrate that his substantial
rights were affected by any such error because he fails to even allege that he
would not have pleaded guilty but for the error. See United States v. London,
568 F.3d 553, 560 (5th Cir. 2009), petition for cert. filed (U.S. Aug. 11, 2009)
(No. 09-5844). To the extent Guerra asserts that he would have been exposed
to exactly the same sentence under the Guidelines if he had insisted on going to
trial, and he was deprived of that option when he was misled about the
mandatory minimum sentence, we are unpersuaded. The evidence against him
was overwhelming, and the trial process can always reveal facts that would have
altered the sentencing calculus. Guerra’s argument has some appeal but is too
speculative to carry his burden of proving a violation of his substantial rights.
For these reasons, the judgment of the district court is AFFIRMED.




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