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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40553
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RODOLFO VASQUEZ-BERNAL,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Texas
REVISED OPINION*
November 29, 1999
Before JONES and WIENER, Circuit Judges, and WALTER,** District
Judge.
PER CURIAM:
On January 28, 1998, Rodolfo Vasquez-Bernal pleaded
guilty to an indictment charging him with illegal entry into the
United States subsequent to deportation. See 8 U.S.C. § 1326.
Vasquez-Bernal pleaded to the charged offense without the benefit
of a plea agreement. On appeal, Vasquez-Bernal does not challenge
the merits of the underlying conviction. Instead, he argues that
the district court failed to advise him of the range of punishment
*This opinion is substituted for an unpublished opinion issued on August
5, 1999.
**District Judge of the Western District of Louisiana, sitting by
designation.

applicable to his crime under § 1326. Vasquez-Bernal maintains
that this failure violated Fed. R. Crim. P. 11 and mandates a
reversal of his conviction. The Federal Public Defender ought to
have better things to do. Finding the district court's error
harmless, we dismiss.
To ensure that a guilty plea is "voluntary, accurate and
properly recorded," Rule 11 establishes the procedure that a
district court must follow when accepting a plea. See United
States v. Crow, 164 F.3d 229, 233 (5th Cir.) (citing United States
v. Myers, 150 F.3d 459, 464 n.8 (5th Cir. 1998)), cert. denied, ___
U.S. ___, 119 S. Ct. 2051 (1999). Under Rule 11, a district court
must inform the defendant of the nature of the charge, the
mandatory minimum penalty, the maximum possible penalty, any
special parole or supervised release term, and any applicable
sentencing guidelines. See Fed. R. Crim. P. 11(c)(1).
If a defendant challenges the Rule 11 procedures employed
by the district court during a plea colloquy, this court reviews
the record for harmless error. See United States v. Suarez, 155
F.3d 521, 524 (5th Cir. 1998). First, the court must determine
whether the district court varied from Rule 11's dictates. See id.
If the district court has failed to comply with Rule 11, the court
then examines whether the variance "affect[ed] the substantial
rights of the defendant." Id.
The district court received Vasquez-Bernal's plea during
the course of a simultaneous guilty plea hearing for ten other,
2

similarly-charged defendants. No defendant objected to the
procedure employed by the district court, and Vasquez-Bernal's
counsel did not object to the entry of his client's guilty plea.
The district court, however, did not specifically comply with Rule
11 when it failed to personally inform Vasquez-Bernal of the
punishment range he faced as a consequence of his crime.
That the district court failed to follow Rule 11's strict
requirements, only completes half of our query. We must now
determine whether this error affected Vasquez-Bernal's substantial
rights. Though the district court failed to inform Vasquez-Bernal
of the punishment range for the charged crime, the presentence
report specifically detailed the punishment range applicable to
Vasquez-Bernal's crime. See United States v. Herndon, 7 F.3d 55,
57 (5th Cir. 1993) (examining presentence report for evidence that
plea was voluntary and made with full awareness of plea's
consequences). Vasquez-Bernal was sentenced to 46 months in
custody,1 3 years supervised release, and a $100 special
assessment. This sentence was at the bottom of the guideline range
for his offense and criminal history, including a three-level
reduction for acceptance of responsibility under U.S. Sentencing
Guidelines Manual § 3E1.1(b). As the government points out, a
reversal would necessitate a new plea hearing or trial -- the
outcome of which would likely cause Vasquez-Bernal's sentence to
1
Vasquez-Bernal's sentence is well below the 20-year maximum period
of incarceration potentially applicable to violations of § 1326.
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increase based on the loss of the reduction under U.S. Sentencing
Guidelines Manual § 3E1.1(b).
In light of the circumstances surrounding this plea
hearing, it would be absurd to find that Vasquez-Bernal was unaware
of the consequences of his crime or that this alleged lack of
knowledge actually affected his decision to plead guilty to the
illegal entry charge. Vasquez-Bernal does not argue that he would
not have pled guilty had he been personally informed of the
punishment range for his crime; he merely argues that the court's
error mandates a reversal of his conviction. As this court
explained in Suarez, "[a] substantial right has been violated if
`the defendant's knowledge and comprehension of the full and
correct information would have been likely to affect his
willingness to plead guilty.'" 155 F.3d at 524 (quoting United
States v. Johnson, 1 F.3d 296, 302 (5th Cir 1993) (en banc)).
Vasquez-Bernal has offered no proof -- not even an allegation --
that the punishment information omitted from his plea hearing would
have altered his plea to the illegal entry charge. See United
States v. Williams, 120 F.3d 575, 577-78 (5th Cir. 1997), cert.
denied, --- U.S. ---, 118 S. Ct. 722 (1998). Lacking such proof
and finding no rational basis under the circumstances to conclude
that Vasquez-Bernal would have pled differently had he been
properly advised of the punishment range for his offense, we find
no merit in appellant's argument.
4

We caution, of course, that district courts should take
care that, even as they are more and more constrained to hold plea
proceedings involving multiple defendants, they should be mindful
of complying fully with Rule 11.
AFFIRMED.
5

WALTER, District Judge, with whom WIENER, Circuit Judge, joins
concurring:
I agree with the majority opinion in every respect.
Everyone is familiar with the situation on the border,
where, in order to avoid sinking in the floodtide of cases like
these, overworked District Judges at the border are forced to
handle guilty pleas in groups of up to ten disparate defendants at
a time. This judge has experienced the problem first hand on
visits to help out on the border. My sympathies are with all of
the participants. There appears no end to the Tsunami that
threatens to overwhelm the judiciary along the Texas border.
Congress appears indifferent to the cries for additional Judges,
Assistant United States Attorneys and Public Defenders. Until some
relief is provided, there appears no alternative to the procedures
adopted by the Judges of the border districts. Recognizing this,
I believe that the United States Attorney, and, to a lesser degree,
the Public Defender have an obligation to the Court to help the
Judiciary dot i's and cross t's in order to comply with the
requirements of Rule 11. This is not a game of "gotcha" where the
Public Defender can or should let something like this go by without
calling the Court's attention to the omission. The United States
Attorney has a far greater obligation to listen to the plea
colloquy, and aid the Judge in keeping some order in the chaos of
6

multiple pleas. Every participant has an interest in handling
these cases as expeditiously and efficiently as the law allows.
In continuing to write, I do not denigrate the importance
of Rule 11, nor the rights of the defendant to an informed plea.
But, if ever there was harmless error, this is one and I feel that
the resources of the Public Defender's office could have been
better spent with a little more thought.
I reason thus:
1. the district court erred in not telling the defendant
of the maximum sentence.
2. as a result, the defendant was sentenced to the
absolute minimum (he got three points off for acceptance
of responsibility) under the guidelines and there existed
no reasons for departure.
3. the public defender should have advised the defendant
of the error and told him of his right to appeal as
follows:
a. "The trial court made an error in not advising
you of the maximum penalty, but as you know, I
explained the maximum penalty in our early
discussions. Despite that, you have a right to
appeal, but my best judgment is that under Johnson1,
this will be harmless error and the conviction will
be affirmed. We should not waste resources
appealing. Please sign this release acknowledging
that I advised you of this and that you agree."
b. "if you insist upon appealing, as is your
right, here are the possible scenarios:
1) I am right and the case will be affirmed.
or,
2) the appeals court will reverse and remand
at which time:
1 United States v. Johnson, 1 F.3d 296
7

a) you may withdraw your plea, we will
have a trial and you will be convicted,
because the evidence against you is
overwhelming. You will lose the three
points for acceptance of responsibility
and you will go to jail for longer, or,
b) you will reenter your plea of guilty
and get exactly the same sentence and we
will have used all these resources and
accomplished nothing.
I strongly urge you not to appeal
and if you insist upon the appeal, as is
your right, I will do so, but I will do
so under Anders2."
2 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed2d 493 (1967)
8