            IN THE UNITED STATES COURT OF APPEALS

                             FOR THE FIFTH CIRCUIT
                                         _______________

                                           m 99-41432
                                         _______________



                                 UNITED STATES OF AMERICA,

                                                                     Plaintiff-Appellee,

                                              VERSUS

                        MARIO ALBERTO HERNANDEZ-HERNANDEZ,

                                                                     Defendant-Appellant.


                                   _________________________

                            Appeal from the United States District Court
                                for the Southern District of Texas
                                         (L-99-CR-648-1)
                                 _________________________

                                         November 10, 2000


Before JOLLY, JONES, and SMITH,                      dez”), a citizen of Mexico, pleaded guilty to
  Circuit Judges.                                    illegal reentry into the United States following
                                                     deportation in violation of 8 U.S.C. § 1326.
JERRY E. SMITH, Circuit Judge:*                      He and his counsel signed a plea agreement
                                                     admitting his guilt. Hernandez appeals,
   Mario Hernandez-Hernandez (“Hernan-               claiming that his guilty plea was not voluntary,
                                                     that the district court violated the requirements
                                                     of FED. R. CRIM. P. 11, and that the court
   *
                                                     failed to allow him to make a statement in
     Pursuant to 5TH CIR. R. 47.5, the court has
                                                     mitigation of his sentence as required by FED.
determined that this opinion should not be
                                                     R. CRIM. P. 32(c). We conclude that
published and is not precedent except under the
limited circumstances set forth in 5TH CIR.          Hernandez intended to plead guilty and that
R. 47.5.4.                                           the failure to comply with rule 11 is harmless
error but that, as the government concedes,            relation to the facts.” McCarthy v. United
the rule 32(c) violations require us to vacate         States, 394 U.S. 459, 466 (1969)(finding such
the sentence and remand it.                            understanding an essential component of a
                                                       knowing and voluntary plea).
                       I.
   Hernandez asserts he did not intend to                 The existence of a written plea agreement
plead guilty and that the court neither entered        and the fact that Hernandez did not assert ei-
a guilty plea nor explicitly accepted his plea.        ther (a) that he is innocent or (b) that he would
The record shows, however, that the district           not have waived his right to trial had he
court accepted Hernandez’s plea by entering a          received the benefit of the rule 11 warnings
judgment of conviction on December 3, 1999.            lend credence to the district court’s finding
We review the acceptance of a guilty plea for          that Hernandez intentionally pleaded guilty.
clear error, United States v. Rivas, 85 F.3d           On appeal, however, Hernandez contests the
193, 194 (5th Cir. 1996), and the voluntariness        validity of his plea because he never affirmed
of the plea de novo, United States v. Reyna,           in open court that he would plead guilty of his
130 F.3d 104, 111 (5th Cir. 1997).                     own free will, that he understood the range of
                                                       punishment, or that he understood that he
   A defendant must plead guilty knowingly             waived his right to a jury trial.3
and voluntarily.2 The guilty plea “is itself a
conviction; nothing remains but to give                   Hernandez, however, signed a written plea
judgment and determine sentence.” Boykin v.            agreement containing this information and
Alabama, 395 U.S. 238, 242 (1969). If the              delineating the range of punishment and the
defendant does not affirmatively show that he          specific rights he would have at trial that he
intelligently and voluntarily intends to plead         waived by signing the agreement. The
guilty, the conviction cannot stand. See id.           agreement additionally states that “[t]he
                                                       defendant acknowledges that no threats have
    The district court indisputably violated the       been made against the defendant and that the
rule 11 procedures designed to act as a                defendant is pleading guilty freely and
prophylactic against precisely this type of            voluntarily because the defendant is guilty.”
challenge to a conviction. Regardless of the
procedural errors, however, the record                     On the strength of this language, we
contains a written plea agreement signed by            conclude that Hernandez pleaded guilty
Hernandez, his counsel, and the prosecutor.            voluntarily. With this plea agreement before
Hernandez affirmed in court that he                    it, the court did not clearly err either in
understood the agreement and its contents.             determining that Hernandez intended to enter
Even though the court did not instruct him in          a guilty plea or in accepting that plea.4
open court as per rule 11, this fact in and of
itself does not indicate that Hernandez did not
“possess[] an understanding of the law in                 3
                                                           Cf. United States v. Williams, 20 F.3d 125,
                                                       133 (5th Cir. 1994).
   2                                                      4
     McChesney v. Henderson, 482 F.2d 1101,                 Cf. United States v. Grandia, 18 F.3d 184,
1106 (5th Cir. 1973) (citing Brady v. United           187 (2d Cir. 1994) (concluding that failure to ask
States, 397 U.S. 742 (1970)).                                                              (continued...)

                                                   2
                      II.                                   prosecutor’s sentencing recommendation.
   Hernandez argues that the failure to comply              FED. R. CRIM. P. 11(e)(2). Finally, the court
with the requirements of rule 11 rendered his               must make sufficient inquiry to establish a
guilty plea void. We disagree. Even though                  satisfactory factual basis for the plea. FED. R.
the court was lax in accepting the plea, these              CRIM. P. 11(f).
“variances from the procedures required” by
rule 11 do not affect Hernandez’s substantial                  A conviction must be vacated when the
rights; thus, we disregard them. See FED. R.                court fails to follow the procedures prescribed
CRIM. P. 11(h).                                             by rule 11 and those variances affect
                                                            substantive rights. United States v. Watch, 7
   We review compliance with rule 11                        F.3d 422, 428-29 (5th Cir. 1993). The parties
de novo. United States v. Myers, 150 F.3d                   agree that the court failed to follow the
459, 461 (5th Cir. 1998) (citing United States              procedures required by rule 11. Thus, we
v. Scott, 987 F.2d 261, 264 (5th Cir. 1993)).               must decide whether those failures affected
A defendant may assert rule 11 violations on                Hernandez’s substantial rights. See rule
appeal regardless of whether he raised the is-              11(h).5 Because they did not, we disregard
sue in the district court. United States v.                 them.
Suarez, 155 F.3d 521, 524 (5th Cir. 1998).
                                                               A variance from rule 11 affects substantial
    Rule 11(c) requires the court to address the            rights if “the defendant’s knowledge and com-
defendant personally to determine that he un-               prehension of the full and correct information
derstands and to inform him of certain facts,               would have been likely to affect his willingness
including the nature of the charge, the                     to plead guilty.” Johnson, 1 F.3d at 302.
penalties involved, the right to an attorney, the           Because the plea agreement contained all the
right to a jury trial and the rights attendant to           information the court must impart under rule
trial, and the waiver of those rights effected by           11, the court’s actions did not affect Hernan-
the guilty plea. FED. R. CRIM. P. 11(c)(1)-(5).             dez’s decision to plead guilty.
The court must “determin[e] that the plea is
voluntary and not the result of force or threats               Hernandez answered affirmatively when
or of promises apart from a plea agreement.”                asked, during the plea hearing, whether he un-
FED. R. CRIM. P. 11(d). If the defendant and                derstood the agreement.          The written
the government have reached a written plea                  agreement independently informed him, before
agreement, the court must advise the                        he appeared in court, of each of the
defendant that he has no right to withdraw his              procedures required by rule 11. Thus, the
guilty plea if the court does not accept the                court’s actions did not materially affect
                                                            Hernandez’s understanding of the proceedings

   4
    (...continued)
defendant “How do you plead?” in open court is
not fatal if it is evident from the facts and
                                                               5
circumstances that defendant intended to plead                  See also United States v. Henry, 113 F.3d
guilty, affirmatively admitted his guilt, stated that       37, 40 (5th Cir. 1997) (citing United States v.
he entered plea voluntarily, and fully believed he          Johnson, 1 F.3d 296, 297 (5th Cir. 1993)
was pleading guilty).                                       (en banc)).

                                                        3
or willingness to plead.6

                       III.
   The government agrees with Hernandez’s
contention that we must vacate and remand his
sentence because the court failed to comply
with FED. R. CRIM. P. 32(c)(3)(C), which
requires it to “address the defendant personally
and determine whether the defendant wished
to make a statement and to present any
information in mitigation of the sentence.” “‘If
the district court fails to provide the rule 32
right of allocution, resentencing is required.’”
Myers, 150 F.3d at 463 (quoting United States
v. Dominguez-Hernandez, 934 F.2d 598, 599
(5th Cir. 1991)).

   Therefore, we AFFIRM the conviction but
VACATE the sentence and REMAND for
resentencing.




   6
     Cf. United States v. Adams, 961 F.2d 505,
510-12 (5th Cir. 1992) (holding the error harmless
where the district court failed to determine the ex-
istence of a sufficient factual basis for the guilty
plea but the record available to the appellate court
independently supported it). Other circuits have
held that written plea agreements containing infor-
mation the district court failed to impart under rule
11 may cleanse the harm from the error. See, e.g.,
United States v. Cross, 57 F.3d 588, 591-92 (7th
Cir. 1995) (finding harmless error where the
defendant signed a plea agreement stating that the
plea was voluntary); United States v. Parkins, 25
F.3d 114, 117-18 (2d Cir. 1994) (finding harmless
error where the defendant signed a plea agreement
that described the nature of the charge).

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