     Case: 11-10477     Document: 00511918696         Page: 1     Date Filed: 07/12/2012




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

                                                                            FILED
                                                                            July 12, 2012
                                     No. 11-10477
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff – Appellee

v.

JOSE ARTURO LUJAN-RUIZ,

                                                  Defendant – Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 1:10-CR-55-1


Before SMITH, DeMOSS, and GRAVES, Circuit Judges.
PER CURIAM:*
        Jose Arturo Lujan-Ruiz (Lujan) appeals his conviction and a special
condition of supervised release imposed following his guilty plea to being found
unlawfully in the United States following deportation. Lujan argues that the
district court erred in failing to comply with Federal Rule of Criminal Procedure
11(b)(1)(G) by failing to adequately inform him of the nature of the charge and
in not confirming his understanding of the elements of the offense. Because
Lujan did not object to these omissions in the district court, review is for plain

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-10477

error. See United States v. Vonn, 535 U.S. 55, 59 (2002). “[A] defendant who
seeks reversal of his conviction after a guilty plea, on the ground that the district
court committed plain error under Rule 11, 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). “When reviewing under a plain error
standard, ‘this court may consult the whole record when considering the effect
of any error on substantial rights.’” United States v Oliver, 630 F.3d 397, 412
(5th Cir.), cert. denied, 132 S. Ct. 758 (2011) (citing Vonn, 535 U.S. at 59).
      In conducting a guilty plea colloquy, a district court is required by Rule
11(b)(1)(G) to inform the defendant of the nature of the charges to which he is
pleading and to ascertain that he understands those charges. United States v.
Reyes, 300 F.3d 555, 559 (5th Cir. 2002). The district court did not review the
specific elements of the offense with Lujan and did not specifically inquire
whether he understood those elements. However, a review of the whole
record—including Lujan’s initial arraignment, rearraignment, plea memoranda,
and the factual resume supporting the guilty plea—demonstrates that Lujan
understood the nature of the illegal reentry charge. See Dominguez Benitez, 542
U.S. at 83; Oliver, 630 F.3d at 412. Lujan has failed to show that he would not
have entered a guilty plea but for the omissions; thus, Lujan’s substantial rights
were not affected and the omissions do not constitute plain error. See Puckett v.
United States, 556 U.S. 129, 135 (2009).
      Lujan further argues that the district court did not advise him of its
obligation to consider the 18 U.S.C. § 3553(a) factors at sentencing and did not
ascertain whether his counsel had discussed those factors with him. Lujan
complains that the record does not reflect that he was aware of all the factors
that could be considered at sentencing or that the district court could depart
upward at sentencing. Although it made no specific reference to the § 3553(a)
factors during the rearraignment, the district court advised Lujan that it was
required to consider the Sentencing Guidelines, admonished him that the

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                                  No. 11-10477

Guidelines were advisory, and informed him that, if warranted by the facts, it
could impose up to the maximum statutory sentence. Lujan indicated to the
district court that he understood that the maximum statutory term of
imprisonment was 20 years. These admonitions were contained in the plea
memorandum, which was acknowledged and signed by Lujan. The record reflects
that Lujan was aware that the district court was not bound by the Guidelines
and that it could sentence him above the guidelines range. Nothing in the record
suggests that Lujan would have persisted in pleading not guilty if the district
court had addressed the § 3553(a) factors specifically. See Dominguez Benitez,
542 U.S. at 80–83. This omission did not affect his substantial rights and, thus,
did not constitute plain error. Puckett, 556 U.S. at 135.
      Even considering the alleged errors cumulatively, the record and
discussion above shows that Lujan possessed all the information that would
have been likely to affect his willingness to plead guilty. Accordingly, the
omissions did not materially affect the voluntariness of his plea. See United
States v. Cuevas-Andrade, 232 F.3d 440, 445 (5th Cir. 2000); see also Vonn, 535
U.S. at 62–63.
      Finally, Lujan argues that his sentence should be vacated and his case
remanded to the district court because the special condition of supervised release
that he be surrendered upon release to immigration officials for deportation
contained in the written judgment was not included in the oral pronouncement
of sentence. The Government concedes that the written judgment should be
amended to conform to the oral pronouncement.
      Because Lujan had no opportunity to raise this issue at sentencing, review
is for an abuse of discretion. See United States v. Bigelow, 462 F.3d 378, 381 (5th
Cir. 2006). Where there is a conflict between a written judgment and an oral
pronouncement at sentencing, the oral pronouncement controls. Id.; United
States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003). The special condition
requiring Lujan to report for deportation included in the written judgment was

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in conflict with the oral pronouncement at sentencing and, thus, its inclusion
was an abuse of discretion.
      Accordingly, Lujan’s conviction is AFFIRMED, his sentence is VACATED
IN PART, and the case is REMANDED to the district court with instructions
that the written judgment be amended to conform to the oral pronouncement.




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