Case: 15-60210      Document: 00514632516         Page: 1    Date Filed: 09/07/2018




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

                                                                               FILED
                                    No. 15-60210                        September 7, 2018
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

OSVALDO TORRES-SOSA, also known as Roberto Magallon-Salgado,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 2:13-CR-23-3


Before REAVLEY, JONES, and HIGGINSON, Circuit Judges
PER CURIAM: *
       Osvaldo Torres-Sosa pleaded guilty, pursuant to a plea agreement, to
possession with intent to distribute 500 grams or more of methamphetamine.
He argues that the district court violated Federal Rule of Criminal Procedure
11(b)(1)(D) and deprived him of due process by failing to advise him at
rearraignment that he had the right to appointed counsel if he could not afford
an attorney to replace his retained counsel.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-60210     Document: 00514632516      Page: 2   Date Filed: 09/07/2018


                                  No. 15-60210

      Because Torres-Sosa did not object to any error under Rule 11, plain
error review applies to the issue of whether the district court violated Rule
11(b)(1)(D). See United States v. Vonn, 

, 59-62 (2002). A Rule 11
violation is harmless error unless it affects a defendant’s substantial rights. 

Fed. R. Crim. P. 11(h). To obtain a reversal of his conviction based on
plain error under Rule 11(b)(1)(D), Torres-Sosa “must show a reasonable
probability that, but for the error, he would not have entered the plea.” United
States v. Dominguez Benitez, 

, 83 (2004).
      Any error under Rule 11(b)(1)(D) did not affect Torres-Sosa’s substantial
rights. He was advised of his right to appointed counsel during his initial
appearance, received appointed counsel before obtaining retained counsel,
advised the court at rearraignment, before pleading guilty, that he wished to
proceed with his retained counsel and had no complaints about counsel’s
representation, and thereafter waived his trial rights, admitted his guilt, and
stated that he was voluntarily pleading guilty and accepting the plea
agreement. See Dominguez 

.
      Given those circumstances, as well as the absence of any assertion by
Torres-Sosa that he was unable to pay his current retained counsel, there also
was no denial of any right of Torres-Sosa to counsel of his choice, no abuse of
discretion in the denial of retained counsel’s motion to withdraw, and no abuse
of discretion under the Criminal Justice Act, 18 U.S.C. § 3006A(c). See United
States v. Austin, 

, 455-56 (5th Cir. 2016).
      AFFIRMED.




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