     Case: 08-40461   Document: 0051998233     Page: 1   Date Filed: 01/07/2010




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

                                                 FILED
                                                                  January 7, 2010
                                No. 08-40461
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee

v.

MIGUEL HERNANDEZ-HERNANDEZ,

                                             Defendant-Appellant


                  Appeal from the United States District Court
                       for the Southern District of Texas
                           USDC No. 5:07-CR-1653-1


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
       Miguel Hernandez-Hernandez (Hernandez) pleaded guilty to illegally
reentering the United States following a prior deportation. He was sentenced
to 41 months of imprisonment and a three-year term of supervised release.
Hernandez filed a timely notice of appeal.
       Hernandez raises three points of error with respect to the plea colloquy
conducted by the magistrate judge (MJ). None of them were raised in the



       *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
   Case: 08-40461    Document: 0051998233 Page: 2        Date Filed: 01/07/2010
                                 No. 08-40461

district court, and they are all reviewed here only for plain error. See United
States v. Vonn, 535 U.S. 55, 58-59 (2002). Hernandez must show by a reasonable
probability that, but for the error, he would not have entered his guilty plea. See
United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
      Hernandez argues that the MJ failed to determine that his plea was
voluntary and not the result of force, threats, or promises outside of a plea
agreement. Under Dominguez Benitez, we may consider the whole record in
determining whether the MJ’s error affected Hernandez’s decision to plead
guilty. See Dominguez Benitez, 542 U.S. at 83. The MJ was not required to use
talismanic words in ascertaining the voluntariness of Hernandez’s plea. See
United States v. Bachynsky, 949 F.2d 722, 726 (5th Cir. 1991). After a review of
the entire record in this matter and of the plea colloquy in particular, we
conclude that Hernandez has not shown that his decision to plead guilty was
affected by this omission. See Dominguez Benitez, 542 U.S. at 83.
      Also challenged in this appeal is the failure of the MJ to inform Hernandez
of the district court’s obligation to consider the sentencing guidelines and its
ability to depart therefrom.     See F ED. R. C RIM. P. 11(b)(1)(M).     Further,
Hernandez challenges the MJ’s failure to inform him that any false statements
made during the plea hearing could subject him to prosecution for perjury. See
Rule 11(b)(1)(A). Nothing in the record indicates that, but for these omissions,
Hernandez would not have pleaded guilty. Hernandez thus has not shown plain
error with respect to these omissions. See Dominguez Benitez, 542 U.S. at 83.
      Hernandez also argues that the cumulative effect of the three omissions
noted above is to undermine the confidence in the outcome of the proceeding. As
Hernandez has not shown reversible error as to any of his individual arguments,
he cannot show cumulative reversible error. See United States v. Stalnaker, 571
F.3d 428, 435 (5th Cir. 2009).
      AFFIRMED.



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