                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  April 21, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-41043
                        Conference Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JOSE LUIS RODRIGUEZ-MORALES,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. L-03-CR-237-ALL
                      --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

     Jose Luis Rodriguez-Morales (“Rodriguez”) appeals his

guilty-plea conviction of entering the United States without

the consent of the Attorney General, after having been excluded

or deported, in violation of 8 U.S.C. § 1326(a) and (b).

For the first time on appeal, Rodriguez contends that during his

rearraignment proceeding the magistrate judge, to whom Rodriguez

had given consent to take his plea, violated FED. R. CRIM. P. 11

in various instances.


     *
        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that this opinion should not be published and is not precedent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.
                             No. 03-41043
                                  -2-

     Because a guilty plea involves the waiver of several

constitutional rights, it must be made intelligently and

voluntarily.     Boykin v. Alabama, 395 U.S. 238, 242-44 (1969).

Rule 11 requires the district court to follow certain procedures

to determine whether a defendant’s guilty plea is made knowingly

and voluntarily.    This court reviews the district court’s

compliance with Rule 11 to determine (1) whether the court varied

from Rule 11’s procedures and, if so, (2) whether the variance

affected the defendant’s substantial rights.     United States

v. Johnson, 1 F.3d 296, 298 (5th Cir. 1993) (en banc).    When an

appellant allows an error in a guilty-plea colloquy to pass

without objection, this court reviews for plain error only.

United States v. Vonn, 535 U.S. 55, 59 (2002).    To establish

plain error, an appellant bears the burden to show that (1) there

is an error (2) that is “clear” or “obvious” and (3) that affects

his substantial rights.     United States v. Olano, 507 U.S. 725,

731-37 (1993).

     Rodriguez’s contention that the magistrate judge failed

to inform him of the applicable minimum sentence is frivolous

because 8 U.S.C. § 1326 does not prescribe a minimum sentence.

Rodriguez challenges the magistrate judge’s failure to give at

least two Rule 11 warnings that have been deleted from the

current version of Rule 11, which applied to Rodriguez**:


     **
        The Federal Rules of Criminal Procedure were amended
effective December 1, 2002. Because Rodriguez’s rearraignment
occurred after that date, the current version controls.
                          No. 03-41043
                               -3-

First, Rodriguez argues that the “effect” of supervised release

was not explained to him and, second, he maintains that the

magistrate judge failed to inquire whether his “willingness

to plead guilty” was the result of discussions between the

Government’s attorney and his own.   Because Rule 11 no longer

contains such requirements, Rodriguez cannot show plain error as

to these alleged shortcomings.   Finally, the magistrate judge’s

failure to mention that the district court had discretion to

depart from the applicable guideline imprisonment range was not

plain error, because the district court did not make a departure.

See United States v. Cuevas-Andrade, 232 F.3d 440, 444-45

(5th Cir. 2000).

     The appeal is DISMISSED as frivolous.   5TH CIR. R. 42.2.
