     Case: 19-40739      Document: 00515507962         Page: 1    Date Filed: 07/29/2020




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

                                    No. 19-40739                              FILED
                                  Summary Calendar                        July 29, 2020
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CLEMENTE VALDEZ, JR.,

                                                 Defendant-Appellant


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 1:19-CR-21-1


Before JOLLY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM: *

           The opinion issued July 23, 2020 is withdrawn by the panel, and the
following is issued in its place:
       Clemente Valdez, Jr., appeals his conviction and sentence for escape
from custody, in violation of 18 U.S.C. § 751(a). Valdez argues that reversal is
warranted because (1) the voluntariness of his guilty plea and the district

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 19-40739     Document: 00515507962       Page: 2   Date Filed: 07/29/2020


                                   No. 19-40739

court’s compliance with Federal Rule of Criminal Procedure 11 cannot be
ascertained due to omissions in the rearraignment transcript and (2) there is
a conflict between the original sentencing transcript, which reflected a
sentence of 14 months of imprisonment, and the judgment, which imposed a
sentence of 24 months of imprisonment.
      The Government requests summary affirmance on the second issue
because, it asserts, “the position of one of the parties is clearly right as a matter
of law so that there can be no substantial question as to the outcome of the
case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
The Government does not cite a case that forecloses Valdez’s claim. See United
States v. Houston, 625 F.3d 871, 873 n.2 (5th Cir. 2010). Rather, the second
issue is rendered moot. Indeed, the record reflects that the discrepancy
between the oral sentence and court transcript was a result of a typographical
error. The court reporter referred to a digital back-up recording and verified
that the oral pronouncement was in fact 24 months, as recommended in the
presentence report. The district court then issued a corrected sentencing
transcript to eliminate the typographical error and discrepancy. Summary
affirmance is therefore improper.
      Turning to the first issue, as Valdez notes, the first seven minutes of the
hearing are missing from the rearraignment transcript. However, “a merely
technically incomplete record, involving no substantial or significant
omissions, will not be sufficient to work a reversal.” United States v. Selva,
559 F.2d 1303, 1306 n.5 (5th Cir. 1977). Moreover, reversal is not warranted
unless the omissions from the technically incomplete record affected the
defendant’s substantial rights or caused “any error other than harmless error.”
United States v. Upshaw, 448 F.2d 1218, 1224 (5th Cir. 1971).




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                                No. 19-40739

      In this case, the record includes a significant portion of the
rearraignment transcript, the minutes of the hearing, and findings of fact and
recommendations on the plea. The omissions from the transcript are not
substantial and significant. See United States v. Pace, 10 F.3d 1106, 1125 (5th
Cir. 1993). Thus, the omissions must be anything other than harmless to
warrant a reversal. See Upshaw, 448 F.2d at 1223-24.
      The record shows that Valdez intended to plead guilty, that he admitted
committing the acts set out in the factual basis, that he understood the nature
of the proceedings, and that he was knowingly and voluntarily entering his
plea. Notably, he did not object to the magistrate judge’s findings and
recommendation on the guilty plea, nor did he attempt to withdraw his plea.
Thus, we are satisfied that any omissions from the transcript were harmless.
See Upshaw, 448 F.2d at 1224.
      Accordingly, the judgment of the district court is AFFIRMED. The
Government’s motion for summary affirmance is DENIED.




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