     Case: 12-41322      Document: 00512584383         Page: 1    Date Filed: 04/03/2014




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

                                                                                    FILED
                                      No. 12-41322                               April 3, 2014
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk


                                                 Plaintiff – Appellee
v.

RENE AMADO LARA-CASTRO,

                                                 Defendant – Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 2:09-CR-1060-1


Before HIGGINBOTHAM, DAVIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Rene Amado Lara-Castro pled guilty to one count of knowingly and
intentionally possessing with intent to distribute more than 1,000 kilograms
of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Sentenced
to a 135 month term of incarceration, he argues to this court that the district
court’s failure during the Rule 11 plea colloquy to inform him of his right to the
assistance of court appointed counsel if he could not afford retained counsel
was reversible plain error. We AFFIRM.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-41322
                                        I
      On October 22, 2008, Rene Amado Lara-Castro drove a tractor-trailer
into the United States Border Patrol checkpoint south of Falfurrias, Texas, for
an immigration inspection. When questioned about his citizenship status,
Lara-Castro provided a Border Patrol agent with his United States
employment authorization card. While this agent was interviewing Lara-
Castro, another agent conducted a free-air search of the tractor-trailer with a
service canine. When the service canine alerted to the presence of contraband,
the agents directed Lara-Castro to drive his tractor-trailer into a secondary
inspection area.
      Lara-Castro failed to stop in the secondary-inspection area; instead,
Lara-Castro exited the checkpoint and drove away.         Border Patrol agents
pursued Lara-Castro, finding his tractor-trailer abandoned less than a mile
from the checkpoint.    The agents were unable to locate Lara-Castro.         In
searching the tractor-trailer, the agents found Lara-Castro’s employment
authorization card, his driver logbook, and a wallet that contained Lara-
Castro’s driver’s license, social security card, and several credit cards. In the
trailer, the agents found 143 bundles of marijuana, weighing 2,407.8
kilograms. Additionally, agents conducted latent fingerprint analysis on items
located within the trailer, and one of these fingerprints matched with Lara-
Castro’s known fingerprints.
      Nine days later, Lara-Castro was arrested in Memphis, Tennessee. He
was indicted on one count of knowingly and intentionally possessing with
intent to distribute more than 1,000 kilograms of marijuana, pled not guilty,
and proceeded to a jury trial. Immediately before trial, Lara-Castro objected
to the Government’s fingerprint evidence, arguing that it should be excluded
because the Government did not timely produce it and the defense had not had
an adequate opportunity to retain its own expert to analyze it. The parties
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                                 No. 12-41322
agreed that the evidence was important for trial, as Lara-Castro maintained
that he was not the driver of the tractor-trailer.     The district court then
excluded the evidence, concluding that its exclusion was warranted by the
Government’s impermissible, belated production.
      At trial, the jury failed to reach a unanimous verdict. The district court
declared a mistrial, and scheduled a date for retrial. The district court noted
that the previously excluded fingerprint evidence would now be admissible, as
the defense would have an adequate opportunity to retain its own expert.
      Shortly thereafter, Lara-Castro entered a guilty plea to the one count
charged in the indictment. The district court imposed a guidelines sentence of
135 months of incarceration to be followed by five years of supervised release.
Lara-Castro, through counsel, filed a timely notice of appeal, but failed to take
necessary steps to perfect the appeal. We then dismissed the appeal for want
of prosecution.
      Lara-Castro filed a pro se 28 U.S.C. § 2255 motion, arguing, inter alia,
that his trial counsel rendered ineffective assistance by failing to prosecute
properly his direct appeal. The district court found that Lara-Castro’s counsel
abandoned him on appeal. The district court then dismissed Lara-Castro’s §
2255 motion without prejudice, and separately reentered the judgment on his
criminal conviction. Lara-Castro then timely appealed pro se, and we granted
his motion for appointment of counsel.
                                       II
      Lara-Castro argues that the district court erred by not admonishing him
during the Rule 11 plea colloquy that he had the right to be represented by
appointed counsel if he proceeded to retrial. Lara-Castro argues that he had
retained counsel during the district court proceedings, and he was not informed
by any other sources as to his right to appointed counsel. Lara-Castro contends
that he has had no previous experience with the criminal justice system, and
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                                      No. 12-41322
his limited formal education and basic literacy skills support his contention
that he had no knowledge of his legal rights.
       Our review is limited to plain error because Lara-Castro failed to object
in the district court to the sufficiency of the plea colloquy. 1 To establish plain
error, Lara-Castro must demonstrate (i) error, (ii) that is plain, and (iii) that
effects his substantial rights. 2 To “demonstrate that his substantial rights
were affected by the district judge’s alleged failure to explain” the right to
appointed counsel, 3 Lara-Castro “must show a reasonable probability that, but
for the error, he would not have entered the plea.” 4 If Lara-Castro establishes
these three elements, we have discretion to correct plain error where it
“seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” 5
       Before accepting a plea of guilty, Federal Rule of Criminal Procedure
11(b)(1)(D) requires the district court to “inform the defendant of, and
determine that the defendant understands . . . the right to be represented by
counsel—and if necessary have the court appoint counsel—at trial and at every
other stage of the proceeding[.]” A Rule 11 omission maybe harmless where
the record shows that there was an implicit admonition and the defendant
understood the right he was giving up, 6 or where the omitted admonitions were
in the plea agreement. 7


       1 See United States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Oliver, 630 F.3d
397, 411–12 (5th Cir. 2011).
       2 See United States v. Olano, 507 U.S. 725, 732 (1993).
       3 Oliver, 630 F.3d at 412.
       4 Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)).
       5 Id. (quoting Olano, 507 U.S. at 732 (1993)).
       6 See, e.g., United States v. Bachynsky, 949 F.2d 722, 725–26 (5th Cir. 1991) (“A

verbatim reading of Rule 11 . . . to the defendant is not required as long as the defendant
understands the rights he forfeits by pleading guilty.”).
       7 See, e.g., United States v. Cuevas-Andrade, 232 F.3d 440, 444–45 (5th Cir. 2000)

(harmless error where the “penalties . . . were fully and accurately explained in the signed
plea agreement”).
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                                       No. 12-41322
       It is undisputed that the district court failed to inform Lara-Castro of his
right to court appointed counsel. 8 And there is no basis in the record for
concluding that Lara-Castro at rearraignment was otherwise informed of his
right to court appointed counsel in the course of the plea colloquy; there is no
indication in the plea colloquy that Lara-Castro was implicitly admonished of
this right, nor was this admonition contained within the written plea
agreement. Thus, the district court clearly erred by not insuring that Lara-
Castro was admonished in accordance with Rule 11(b)(1)(D).
       We turn to whether Lara-Castro has established that the district court’s
error affected his substantial rights. Lara-Castro argues (i) that he was never
made aware of his right to the appointment of counsel, and (ii) that he was
“obviously willing to go to trial,” and he, therefore, suggests that he would not
have pled guilty but for the district court’s omission.
       On review of the record, we conclude that Lara-Castro has failed to
establish that the district court’s error affected his substantial rights. To begin
with, Lara-Castro was twice informed of his right to appointed counsel prior to
the plea colloquy. 9 At his initial appearance, Lara-Castro was advised of his
rights and signed a waiver indicating that he has been informed of his right to
“retain counsel or request the assignment of counsel if [he is] unable to retain
counsel[.]” 10 Likewise, a counsel determination hearing was held to determine
whether Lara-Castro required appointed counsel. 11 Here, we find that Lara-



       8 See Appellee’s Br. at 24 (“It is undisputed that, at rearraignment, the district court
did not inform Lara . . . of his right to have counsel appointed ‘if necessary.’”).
       9 See United States v. Mason, 480 F.App’x 329, 333 (5th Cir. 2012) (unpublished, per

curiam) (“the record reveals that [defendant] was aware of his right to appointed trial counsel
notwithstanding the district court’s error”).
       10 R. 23.
       11 Supp. R. 26 (the magistrate judge explained to Lara-Castro that “you’re here today

because it’s my understanding you haven’t retained an attorney, and I was under the
impression you needed a court appointed attorney”).
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                                       No. 12-41322
Castro was made aware of his right to appointed counsel prior to the plea
colloquy, and we find no reason to conclude that Lara-Castro did not recall
these prior admonitions regarding his right to appointed counsel. 12
       Second, Lara-Castro has failed to demonstrate a reasonable probability
that, but for the district court’s error, he would not have pled guilty. To be
sure, Lara-Castro argues that he was “obviously willing to go to trial,” yet this
does not establish a reasonable probability that, but for the Rule 11 error, he
would have proceeded to trial. Importantly, the district court made clear that
additional inculpatory evidence—namely, the fingerprint evidence linking
Lara-Castro with the contents of the tractor-trailer—would have been
admissible in a retrial. 13 And there is no indication in the record that the Rule
11 error can reasonably be viewed as having been a material factor affecting
Lara-Castro’s decision to plead guilty.              Lara-Castro was represented by
retained counsel throughout the district court proceedings, and there is no
indication that he either needed or qualified for appointed counsel at the time
of his guilty plea. Although Lara-Castro suggests that he might have had
concerns about the ability to afford retained counsel for a second, he does not
allege that he would have been without counsel had he proceeded to retrial. 14
Accordingly, the district court’s Rule 11 error does not constitute plain error.
       For these reasons, we AFFIRM.




       12  C.f. Vonn, 535 U.S. at 75 (“Because there are circumstances in which defendants
may be presumed to recall information provided to them prior to the plea proceeding, . . . the
record of [defendant’s] initial appearance and arraignment is relevant in fact, and well within
the Advisory Committee’s understanding of ‘other portions . . . of the limited record’ that
should be open to consideration.”).
        13 Supp. R. 62
        14 See United States v. Nogales, No. 98-50655, 2000 WL 634629 (5th Cir. May 4, 2000)

(Defendant “simply asserts that he ‘might have been’ worried about not being able to afford
an attorney. Generalized speculation about possible harm certainly does not amount to an
affect on [defendant’s] substantial rights.”).
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