     Case: 15-50150      Document: 00513427524         Page: 1    Date Filed: 03/17/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-50150
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          March 17, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JAVIER MARTIN MEZA, also known as Meza, also known as Javier Meza,
also known as Javier M. Meza,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CR-177-7


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
       Javier Martin Meza pleaded guilty to a superseding indictment that
charged him with conspiracy to obstruct commerce by extortion and conspiracy
to distribute 50 grams or more of methamphetamine.                    The district court
imposed a below-guidelines sentence of imprisonment for 160 months. Meza
timely appealed.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-50150

      Meza argues that the district court omitted several warnings required
by Federal Rule of Criminal Procedure 11, rendering his guilty plea
involuntary. Where, as here, a defendant does not object to Rule 11 errors in
the district court, this court reviews for plain error. United States v. Vonn, 535
U.S. 55, 58-59 (2002). Reversal of a guilty plea conviction because of Rule 11
error requires a showing of “a reasonable probability that, but for the error, he
would not have entered the plea.” United States v. Dominguez Benitez, 542
U.S. 74, 83 (2004). We must determine whether the error prejudiced his
decision to plead guilty. United States v. Davila, 133 S. Ct. 2139, 2143 (2013).
      Meza complains that the court failed to warn him that he could be subject
to prosecution for perjury; that the court would ensure the attendance at trial
of defense witnesses; that he could be ordered to pay restitution; that, in
assessing his sentence, the court would consider possible departures under the
Sentencing Guidelines and the 18 U.S.C. § 3553(a) sentencing factors; and that
his plea agreement contained a waiver of his right to appeal his sentence. See
FED. R. CRIM. P. 11(b)(1)(A), (E), (K), (M), (N). He argues that, because he
pleaded guilty only 11 days before trial, and because he executed the plea
agreement on the day that he entered his guilty plea, the omitted warnings
“would have been likely to affect his willingness to plead guilty.” Meza does
not claim that he was misled or explain how the omissions affected his decision
to plead guilty, and his conclusory assertion is insufficient to establish a
reasonable probability that, but for the errors, he would not have pleaded
guilty. See Dominguez Benitez, 542 U.S. at 83-84.
      Meza argues that, by failing to ask whether his plea had been induced
by a promise apart from the plea agreement, the court failed to ensure that his
plea was voluntary. See FED. R. CRIM. P. 11(b)(2). He argues that if the court
had made such an inquiry, “it likely would have uncovered the promise Meza



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                                  No. 15-50150

had from counsel.” Even if this is sufficient to show that the inquiry would
have revealed the promise, and even if counsel made such a promise, the record
does not show that it affected his decision to plead guilty. See Davila, 133 S.
Ct. at 2143.
      The plea agreement provided, and Meza agreed, that “any estimate of
the probable sentencing range that he may receive from his counsel” was “not
a promise” and “did not induce his guilty plea.” During rearraignment, the
district court advised Meza of his range of punishment and the statutory
minimum and maximum sentence, and it explained that his “actual
punishment” is based on the guidelines calculations.             Furthermore, at
sentencing, defense counsel argued for a sentence of not more than 130 months,
rather than the 120-month sentence that Meza says he was promised, and after
being sentenced to a 160-month term of imprisonment, Meza never indicated
that he had been misled or asked to withdraw his plea. Instead, he referenced
his co-defendants’ sentences and the terms of a co-defendant’s plea agreement
and asked, “[W]hy can’t I get that?” Thus, Meza has not shown that, but for
the district court’s failure to ask if any promises had been made outside of the
plea agreement, he would not have pleaded guilty. See Dominguez Benitez, 542
U.S. at 83-84.
      Meza also contends that, because each omission affected his substantial
rights, when considered “[t]ogether, the effect was more striking.” In light of
his failure to establish prejudice as to any of the Rule 11 errors, his conclusory
assertion in insufficient to establish that the cumulative effect of the errors
prejudiced his decision to plead guilty. See id.
      Accordingly, the judgment of the district court is AFFIRMED.




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