     Case: 09-30258     Document: 00511032077          Page: 1    Date Filed: 02/22/2010




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

                                                  FILED
                                                                          February 22, 2010
                                     No. 09-30258
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

BRIAN K. PORTER,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:06-CR-279-1


Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Brian K. Porter pleaded guilty to distribution of 50 grams or more of
cocaine base. He asks this court to overturn his conviction on grounds that the
district court failed to admonish him before he entered his plea that he had the
right to remain silent at trial, the right to testify, and the right to present
evidence, as required by Federal Rule of Criminal Procedure 11.                           The
Government does not seek to enforce the appeal waiver in the plea agreement



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-30258    Document: 00511032077 Page: 2         Date Filed: 02/22/2010
                                 No. 09-30258

for this issue. See United States v. Acquaye, 452 F.3d 380, 381-82 (5th Cir. 2006).
      Because Porter did not object to the Rule 11 colloquy in the district court,
our review is for plain error. See United States v. Vonn, 535 U.S. 55, 59 (2002).
Porter does not assert that he would not have pleaded guilty if the district court
had fully informed him of his trial rights, and there is no indication in the record
that the district court’s omission affected his decision to plead guilty. He thus
fails to show that his substantial rights were affected, and we find no plain error
under Rule 11.      See United States v. Dominguez Benitez, 542 U.S. 74,
80-83 (2004).
      AFFIRMED.




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