                                      REVISED, October 20, 1999

                           UNITED STATES COURT OF APPEALS
                                    FIFTH CIRCUIT

                                         _________________

                                            No. 98-10502

                                         (Summary Calendar)
                                         _________________


               UNITED STATES OF AMERICA,


                                               Plaintiff-Appellee,

               versus


               MIGUEL ANGEL MORALES-SOSA, also known as La Mueneca,


                                               Defendant-Appellant.



                           Appeal from the United States District Court
                        For the Northern District of Texas, Dallas Division

                                          September 30, 1999

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:
       Defendant-Appellant Miguel Morales-Sosa (“Sosa”) pleaded guilty to possession with intent

to distribute heroin. The district court sentenced Sosa to 135 months imprisonment. Sosa appeals

on the grounds that the district court failed to formally accept Sosa’s guilty plea and the plea

agreement prior to sentencing as required by Federal Rule of Criminal Procedure 11(e)(3). We affirm

the judgment of the district court.

                                                  I.

       Sosa was indicted and charged with committing various drug offenses. He subsequently

pleaded guilty to one count of a superceding information charging him with conspiracy to possess
with intent to distribute heroin, in violation of 21 U.S.C. § 846. Under the terms of the plea

agreement, the government agreed to dismiss all charges contained in the original indictment, and

Sosa agreed to cooperate with any government investigations. Sosa also waived his right to appeal

his sentence, reserving the right to appeal on only limited grounds.

        At Sosa’s plea hearing, the district court expressly reserved acceptance of both the guilty plea

and the plea agreement until sentencing. At Sosa’s sentencing hearing, the district court did not

explicitly accept either the guilty plea or the plea agreement. Sosa was sentenced to 135 months

imprisonment. Immediately following sentencing, the original indictment was dismissed upon oral

motion of the United States Attorney.

        Sosa seeks reversal of the district court judgment, contending that the court failed to expressly

accept the guilty plea or the plea agreement as required under Fed. R. Crim. P. 11(e)(3). He also

argues that the court failed to keep a verbatim record of the proceedings as required by Rule 11(g).

                                                  II.

        We review a challenge under Rule 11 under a harmless error standard. See United States v.

Johnson, 1 F.3d 296 (5th Cir. 1993) (en banc). Under a harmless error analysis, we must determine

(1) whether the sentencing court in fact varied from the procedures required by Rule 11, and (2) if

so, whether such variance affected the substantial rights of the defendant. See id. at 298.

        The district court did vary from the procedures required by Rule 11. Rule 11(e)(3) provides

that “[i]f the court accepts the plea agreement, the court shall inform the defendant that it will embody

in the judgment and sentence the disposition provided for in the plea agreement.” Fed. R. Crim. P.

11(e)(3). While a district court is required to defer its decision about whether to accept the type of

plea agreement at issue here until after it has reviewed the presentence report, see U.S.S.G. §

6B1.1(c) (Nov. 1998), Rule 11(e)(3) requires that, prior to sentencing, the court inform the defendant

of its ultimate decision to accept the plea agreement. We must assess the effect of the district court’s

failure to follow this procedure under the second prong of the harmless error test.

        To determine whether a Rule 11 error affected the substantial rights of a defendant, we ask


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“whether the defendant’s knowledge and comprehension of the full and correct information would

have been likely to affect his willingness to plead guilty.” Johnson, 1 F.3d at 302. Sosa has never

alleged that full compliance with Rule 11 would have affected his decision to plead guilty, nor does

the record support such a suggestion. Sosa clearly knew the terms of the bargained-for plea

agreement. The district court had the prosecutor read virtually the entire agreement into the record

at the Rule 11 colloquy, after which Sosa confirmed that he understood its terms. Thus, the relevant

question is whether knowing that the district court had accepted the agreement would have affected

Sosa’s decision to plead guilty. The record clearly indicates that it woul d not have. Sosa, after

hearing the agreement read aloud, pleaded guilty. Presumably, he wanted the district court to accept

the agreement, and knowing that the court had done so would have affirmed, not altered, his decision

to plead as he did.

       We are also persuaded by the government’s argument that the district court did in fact

implicitly accept the plea agreement. Had the district court rejected Sosa’s agreem ent, the court

would have been required, under Rule 11(e)(4), to inform the parties of this fact and to advise Sosa

personally that the court was not bound by the agreement. See Fed. R. Crim. P. 11(e)(4). Here, the

fact that the district court did not follow the procedures of Rule 11(e)(4) coupled with the fact that,

immediately following sentencing, Sosa received the benefits of the plea agreement in the dismissal

of the original indictment and a downward departure from the applicable guidelines, indicate that the

court implicitly accepted the plea agreement.

       Sosa’s substantial rights were not affected by the district court’s failure to expressly accept

the terms of the agreement as required by Rule 11(e)(3). Thus, any error on the part of the district

court was harmless. Sosa’s argument that, by failing to record this omission, the district court fell

short of the recording requirement of Rule 11(g) is completely without merit. Consequently, the

district court judgment is AFFIRMED.




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