     Case: 14-50693      Document: 00513084214         Page: 1    Date Filed: 06/18/2015




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


                                    No. 14-50693                                  FILED
                                  Summary Calendar                            June 18, 2015
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SERGIO CESAR REYES BUSTILLOS, also known as Sergio Cesar Reyes,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:13-CR-924


Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit
Judges.
PER CURIAM: *
       Sergio Cesar Reyes Bustillos (Reyes) appeals his guilty plea conviction
for conspiracy to possess with intent to distribute five kilograms or more of
cocaine and 500 grams or more of a mixture or substance containing
methamphetamine.         For the first time on appeal, Reyes argues that the
magistrate judge plainly erred in violation of Federal Rule of Criminal


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-50693

Procedure 11(c)(3)(B) by failing to admonish him that if the district court did
not accept the drug quantity stipulation in the factual basis, he would not be
allowed to withdraw his guilty plea. He maintains that the failure of the
magistrate judge to properly admonish him amounted to clear error that
affected his substantial rights because the stipulation was the primary
consideration for the plea agreement and he would have gone to trial instead
of pleading guilty if he had been properly informed that it was not binding.
      Where, as here, a defendant fails to object to Rule 11 error in the district
court, we review for plain error only. United States v. Vonn, 535 U.S. 55, 58-
59 (2002). Under this standard, the appellant must show a forfeited error that
is clear or obvious and that affects his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have the
discretion to correct the error but will do so only if the error seriously affects
the fairness, integrity, or public reputation of judicial proceedings. Id. “[A]
defendant who seeks reversal of his conviction after a guilty plea, on the
ground that the district court committed plain error under Rule 11, must show
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 may
consider the entire record to determine whether the defendant has shown that
“the probability of a different result is sufficient to undermine confidence in
the outcome of the proceeding.” Id. (internal quotation marks and citation
omitted).
      Assuming arguendo that there was clear or obvious error, Reyes is not
entitled to relief because the record shows that the error did not affect his
substantial rights. While Reyes argues that he would not have pleaded guilty
if he had been properly admonished because the drug quantity stipulation was
the primary consideration for his pleading guilty, nothing in the plea



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                                  No. 14-50693

agreement or factual basis stated that the stipulation was binding on the court.
Although Reyes was not admonished that he could not withdraw his guilty plea
if the district court rejected the drug quantity stipulation, he was admonished
that the stipulation was not binding. He was further admonished that the
district court could sentence him outside of the guidelines range, up to the
statutory maximum sentence, and that he would not have a right to withdraw
his guilty plea if the sentence was higher than he expected. Reyes did not
object to the magistrate judge’s finding that Reyes understood that he could
not withdraw his guilty plea if the district court did not follow “any
recommended or requested sentencing adjustments contained in the Plea
Agreement,” although the magistrate judge’s findings did not indicate whether
the drug quantity stipulation was a “sentencing adjustment.”            When the
district court indicated at the initial sentencing hearing that it might reject the
drug quantity stipulation, defense counsel consulted with Reyes and requested
a continuance that was granted. After the continuance, Reyes did not seek to
withdraw his guilty plea even though he had been informed that the
stipulation could be rejected.     Thus, Reyes has not shown “a reasonable
probability that, but for the error, he would not have entered the plea,” and,
accordingly, he has not shown plain error. Dominguez-Benitez, 542 U.S. at 83.
      AFFIRMED.




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