     Case: 14-50253      Document: 00512864852         Page: 1    Date Filed: 12/10/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-50253
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        December 10, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

CHARLES SCOTT,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:13-CR-176-3


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Charles Scott appeals his guilty-plea conviction for possessing with
intent to distribute heroin and conspiring to do so. He contends that the
magistrate judge made errors under Federal Rule of Criminal Procedure 11
when taking his plea. He also says that the district court never actually
accepted the plea.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50253

      Scott did not raise any of these issues in the district court, so his
contentions are reviewed for plain error. See United States v. Vonn, 535 U.S.
55, 62-63 (2002). Scott must show that a forfeited error was “clear or obvious,
rather than subject to reasonable dispute,” and that the error affected his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he
does, we have the discretion to correct the error if it seriously affects the
integrity, fairness, or public reputation of the court proceedings. Id.
      To show that a Rule 11 error affected his substantial rights, Scott “must
show a reasonable probability that, but for the error, he would not have entered
the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). Scott
argues, however, that he need not make that showing because he is not stating
a Rule 11 claim but rather a due-process claim that his plea was not knowing
and voluntary. His attempt to recast his Rule 11 claims is invalid because Rule
11 is designed to ensure “that a guilty plea is knowing and voluntary.” United
States v. Reyes, 300 F.3d 555, 558 (5th Cir. 2002); see also United States v.
Cuevas-Andrade, 232 F.3d 440, 445 n.3 (5th Cir. 2000) (noting that
“compliance with Rule 11” is intended to preclude appeals “where the technical
violations do not materially affect the defendant’s decision to plead guilty”). At
best, Scott offers an assortment of “instructive cases” from which we are invited
to extract an argument. We are not required to fashion theories for appellants.
See Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987) (discussing pro se appellants).
      Moreover, “[t]he omission of a single Rule 11 warning without more is
not colorably structural,” and is thus not reversible without a showing that it
affected the proceedings. Dominguez Benitez, 542 U.S. at 81 & n.6. Further,
in United States v. Davila, 133 S. Ct. 2139 (2013), the Court emphasized that
the class of errors triggering automatic reversal is “very limited” and that



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                                 No. 14-50253

nothing in Rule 11 “singles out any instruction as more basic than others.” Id.
at 2149.   The Court explained that Rule 11(h) “calls for across-the-board
application of the harmless-error prescription (or, absent prompt objection, the
plain-error rule).” Id. Scott’s assertion that he need not show that any Rule 11
error affected his plea is without arguable merit.
      Likewise devoid of merit is Scott’s contention that the cumulative effect
of Rule 11 omissions amounted to structural error. There is no support for his
proposition “that numerous Rule 11 omissions, taken together, may transform
otherwise harmless error into reversible error sufficient to compel remand for
repleading.” Cuevas-Andrade, 232 F.3d at 445 (internal quotation marks and
citation omitted). Rather, “every alleged Rule 11 violation must be tested
under the harmless error standard of Rule 11(h), and we may not create
reversible error out of a series of harmless errors unless the cumulative effect
would sustain a conclusion that the voluntariness of his plea was materially
affected.” Id.
      Because Scott relies on the meritless proposition that he need not show
that any error affected his decision to plead guilty, he declines to make any
such argument and thus abandons that crucial issue. See Reyes, 300 F.3d at
558 n.2.   Moreover, nothing in the record or pleadings suggests that any
Rule 11 omission could reasonably have affected Scott’s decision to plead
guilty. See Dominguez Benitez, 542 U.S. at 83.
      Finally, Scott asserts that the district court did not explicitly accept his
plea and cannot be found to have done so implicitly. The district court accepted
the plea by entering a judgment of guilt and sentencing the defendant. See
United States v. Sanford, 429 F.3d 104, 107 n.2 (5th Cir. 2005).
      The judgment is AFFIRMED.




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