     Case: 18-50672      Document: 00515080455         Page: 1    Date Filed: 08/16/2019




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

                                    No. 18-50672                              FILED
                                  Summary Calendar                      August 16, 2019
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

v.

MARGARITA MORA,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:18-CR-16-2


Before JONES, OWEN, and OLDHAM, Circuit Judges.
PER CURIAM: *
        Margarita Mora appeals her guilty-plea conviction for possession with
the intent to distribute five grams or more of methamphetamine, in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(B)(viii). Mora’s punishment range was enhanced
based       on   her    2009     conviction     for    conspiring      to     manufacture
methamphetamine. Mora contends that the district court violated her due
process rights and Federal Rule of Criminal Procedure 11 by failing to properly


        *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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-50672     Document: 00515080455      Page: 2    Date Filed: 08/16/2019


                                  No. 18-50672

admonish her regarding the nature of her charge and her mandatory minimum
punishment. To the extent that Mora is attempting to characterize her Rule
11 claim as a due process challenge, her argument is misplaced 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).
      As Mora concedes, her arguments on appeal are subject to plain error
review because she did not raise them in her district court proceedings. See
United States v. Vonn, 535 U.S. 55, 58-59 (2002).           Under the plain error
standard, Mora “must demonstrate that the district court committed an error
that was clear or obvious and that affected [her] substantial rights and that
the error has a serious effect on the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Broussard, 669 F.3d 537, 546 (5th Cir.
2012) (internal quotation marks omitted) (quoting United States v. Thompson,
454 F.3d 459, 464 (5th Cir. 2006)).         To show that the error affected her
substantial rights, Mora “must demonstrate ‘a reasonable probability that, but
for the error, [s]he would not have entered the plea.’” Id. (quoting United
States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)).
      Mora has failed to show error, plain or otherwise, with respect to the
district court’s admonishment regarding the nature of her charge. See FED.
R. CRIM. P. 11(b)(1)(G). At the rearraignment hearing, Mora’s indictment was
read aloud twice; after each reading, Mora was asked whether she understood
the charge, and both times she confirmed that she did. As we have held, “in
cases involving simple charges, a reading of the indictment, followed by an
opportunity given the defendant to ask questions about it, will usually suffice
to inform the defendant of the nature of the charge.” United States v. Cuevas-
Andrade, 232 F.3d 440, 444 (5th Cir. 2000) (internal quotation marks omitted)
(quoting United States v. Dayton, 604 F.2d 931, 938 (5th Cir. 1979) (en banc)).



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                                 No. 18-50672

Furthermore, contrary to Mora’s contention, an enhancement based on the fact
of a prior conviction is not an element of the offense to which a defendant must
plead.   See Alleyne v. United States, 570 U.S. 99, 103, 111 n.1 (2013);
Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998).
      Additionally, Mora has failed to show plain error with respect to the
district court’s admonishment regarding her mandatory minimum prison
term. See FED. R. CRIM. P. 11(b)(1)(I). Mora asserts that the magistrate judge
confused her by discussing both her unenhanced and enhanced punishment
ranges and failed to make clear that her minimum prison sentence would in
fact be 10 years. Even if we assumed arguendo that the district court clearly
erred in this regard, Mora has failed to show that any such error affected her
substantial rights. See Broussard, 669 F.3d at 546. In her initial brief, Mora
failed even to assert, much less to establish, that there is a reasonable
probability that she would not have entered her guilty plea but for the alleged
Rule 11 error. See id. We will not consider Mora’s assertion of such an
argument for the first time in her reply brief. See Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993).
      Finally, there is no merit to Mora’s contention that the reasonable
probability showing is unnecessary because the alleged Rule 11 error
inherently affected her substantial rights. See Dominguez Benitez, 542 U.S. at
83; Broussard, 669 F.3d at 546.     In light of this binding caselaw, Mora’s
reliance on a conflicting non-precedential unpublished decision is misplaced.
See 5TH CIR. R. 47.5.4.
      The judgment of the district court is AFFIRMED.




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