                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT


                                  No. 98-40553


                       UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                       v.

                          RODOLFO VASQUEZ-BERNAL,

                                                          Defendant-Appellant.



            Appeal from the United States District Court
                 for the Southern District of Texas
                           (B-98-CR-40-1)

                                 August 5, 1999

Before JONES and WIENER, Circuit Judges, and WALTER,* District
Judge.

PER CURIAM:**

           On   January    28,    1998,     Rodolfo    Vasquez-Bernal   pleaded

guilty to an indictment charging him with illegal entry into the

United States subsequent to deportation.                 See 8 U.S.C. § 1326.

Vasquez-Bernal pleaded to the charged offense without the benefit

of a plea agreement.      On appeal, Vasquez-Bernal does not challenge

the merits of the underlying conviction.               Instead, he argues that

the district court failed to advise him of the range of punishment

applicable to his crime under § 1326.                 Vasquez-Bernal maintains


      *
            District Judge of the Western District of Louisiana, sitting by
designation.
     **
            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opinion should not be published and is not precedent except under the limited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.
that this failure violated Fed. R. Crim. P. 11 and mandates a

reversal of his conviction.       The Federal Public Defender ought to

have better things to do.         Finding the district court’s error

harmless, and this appeal frivolous, we dismiss.

            To ensure that a guilty plea is “voluntary, accurate and

properly recorded,” Rule 11 establishes the procedure that a

district court must follow when accepting a plea.                     See United

States v. Crow, 164 F.3d 229, 233 (5th Cir.) (citing United States

v. Myers, 150 F.3d 459, 464 n.8 (5th Cir. 1998)), cert. denied, ___

U.S. ___, 119 S. Ct. 2051 (1999).           Under Rule 11, a district court

must   inform   the   defendant   of    the     nature   of   the    charge,   the

mandatory   minimum    penalty,   the      maximum   possible       penalty,   any

special parole or supervised release term, and any applicable

sentencing guidelines.     See Fed. R. Crim. P. 11(c)(1).

            If a defendant challenges the Rule 11 procedures employed

by the district court during a plea colloquy, this court reviews

the record for harmless error.          See United States v. Suarez, 155

F.3d 521, 524 (5th Cir. 1998).             First, the court must determine

whether the district court varied from Rule 11’s dictates.               See id.

If the district court has failed to comply with Rule 11, the court

then examines whether the variance “affect[ed] the substantial

rights of the defendant.”     Id.

            The district court received Vasquez-Bernal’s plea during

the course of a simultaneous guilty plea hearing for ten other,

similarly-charged     defendants.          No   defendant     objected   to    the

procedure employed by the district court, and Vasquez-Bernal’s


                                       2
counsel did not object to the entry of his client’s guilty plea.

The district court, however, did not specifically comply with Rule

11 when it failed to personally inform Vasquez-Bernal of the

punishment range he faced as a consequence of his crime.

                 That the district court failed to follow Rule 11’s strict

requirements, only completes half of our query.                      We must now

determine whether this error affected Vasquez-Bernal’s substantial

rights.      Though the district court failed to inform Vasquez-Bernal

of the punishment range for the charged crime, the presentence
report specifically detailed the punishment range applicable to

Vasquez-Bernal’s crime.            See United States v. Herndon, 7 F.3d 55,

57 (5th Cir. 1993) (examining presentence report for evidence that

plea       was   voluntary   and    made   with    full   awareness    of   plea’s

consequences).          Vasquez-Bernal was sentenced to 46 months in

custody,1        3   years   supervised        release,   and   a   $100    special

assessment. This sentence was at the bottom of the guideline range

for his offense and criminal history, including a three-level

reduction for acceptance of responsibility under U.S. Sentencing

Guidelines Manual § 3E1.1(b).              As the government points out, a
reversal would necessitate a new plea hearing or trial -- the

outcome of which would likely cause Vasquez-Bernal’s sentence to

increase based on the loss of the reduction under U.S. Sentencing

Guidelines Manual § 3E1.1(b).




       1
            Vasquez-Bernal’s sentence is well below the 20-year maximum period
of incarceration potentially applicable to violations of § 1326.

                                           3
           In light of the circumstances surrounding this plea

hearing, it would be absurd to find that Vasquez-Bernal was unaware

of the consequences of his crime or that this alleged lack of

knowledge actually affected his decision to plead guilty to the

illegal entry charge.    Vasquez-Bernal does not argue that he would

not have pled guilty had he been personally informed of the

punishment range for his crime; he merely argues that the court’s

error mandates a reversal of his conviction.                  As this court

explained in Suarez, “[a] substantial right has been violated if
‘the defendant’s knowledge and comprehension of the full and

correct   information   would    have    been    likely   to    affect    his

willingness to plead guilty.’”         155 F.3d at 524 (quoting United

States v. Johnson, 1 F.3d 296, 302 (5th Cir 1993) (en banc)).

Vasquez-Bernal has offered no proof -- not even an allegation --

that the punishment information omitted from his plea hearing would

have altered his plea to the illegal entry charge.               See United

States v. Williams, 120 F.3d 575, 577-78 (5th Cir. 1997), cert.

denied, --- U.S. ---, 118 S. Ct. 722 (1998).           Lacking such proof

and finding no rational basis under the circumstances to conclude
that   Vasquez-Bernal   would   have    pled    differently    had   he   been

properly advised of the punishment range for his offense, we find

no merit in appellant’s argument.

           DISMISSED AS FRIVOLOUS.




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