     Case: 12-40596       Document: 00512096885         Page: 1     Date Filed: 12/28/2012




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

                                                                            FILED
                                                                        December 28, 2012
                                     No. 12-40596
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SILVESTRE MARTINEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:11-CR-679-2


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Silvestre Martinez appeals his conviction for
possession with intent to distribute cocaine. He argues pursuant to Padilla v.
Kentucky, 130 S. Ct. 1473 (2010), that the district court committed plain error
when it failed to admonish him during the plea colloquy that he would be denied
naturalization as a result of his guilty plea.             We note at the outset that
Martinez’s appellate waiver provision does not bar the instant appeal, which



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-40596     Document: 00512096885       Page: 2   Date Filed: 12/28/2012

                                   No. 12-40596

challenges the voluntariness of his plea. See United States v. White, 307 F.3d
336, 343-44 (5th Cir. 2002).
      As a guilty plea involves the waiver of constitutional rights it must be
voluntary, knowing, and intelligent. Brady v. United States, 397 U.S. 742, 748
(1970). Martinez raised no objection to the allegedly inadequate admonishment;
thus, review is for plain error. See United States v. Vonn, 535 U.S. 55, 74 (2002).
To establish plain error, the defendant must show a forfeited error that is clear
or obvious and that affects his substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009). If he makes such a showing, we have the discretion to
correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
      We need not reach the issue whether Padilla affects a district court’s
guilty plea admonishments because the plea agreement and the transcripts of
his initial appearance and rearraignment collectively disclose that Martinez, a
lawful permanent resident, was fully apprised that a guilty plea could result in
his deportation, exclusion from the United States, or the denial of naturalization.
See United States v. Trejo, 610 F.3d 308, 317 (5th Cir. 2010). As such, any
perceived error on the part of the district court during the plea colloquy did not
affect his substantial rights, i.e., it is not reasonably probable that but for the
alleged error Martinez would not have pleaded guilty. See United States v.
Castro-Trevino, 464 F.3d 536, 541 (5th Cir. 2006). He cannot demonstrate
reversible error under the plain error standard.
      AFFIRMED.




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