Case: 13-50792      Document: 00513224887         Page: 1    Date Filed: 10/08/2015




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

                                    No. 13-50792
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                        October 8, 2015
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

JORGE FABIAN BUCK-SOLTERO, also known as Jorge Fabian Buck, also
known as Dracula, also known as Jorge Buck, also known as Jorge Fabian
Soltero, also known as Jorge Fabian Soltero-Buck,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:11-CR-787-3


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Jorge Fabian Buck-Soltero pleaded guilty to a superseding indictment
that charged him with conspiracy to distribute and possess with intent to
distribute one kilogram or more of heroin, an offense for which 21 U.S.C.
§ 841(b)(1)(A)(i) prescribes a mandatory minimum prison sentence of 10 years
and a mandatory minimum supervised release term of five years.                                    At


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-50792

sentencing, the district court imposed a 10-year term of imprisonment to be
followed by a five-year term of supervised release.       Buck-Soltero timely
appealed.
      In his sole issue on appeal, Buck-Soltero argues that the district court
reversibly erred when it failed to inquire, as required by Federal Rule of
Criminal Procedure 11(b)(2), whether his plea was induced by any promises
other than those contained in his written plea agreement. He maintains that
the record strongly suggests that his plea was induced by an extra-plea
promise from defense counsel that he would be eligible for a safety-valve
reduction that would allow the district court to sentence him below the
statutory minimum 10-year prison term. As it turned out, Buck-Soltero was
not eligible for such a reduction, and he now asserts that his conviction should
be vacated and that he should be allowed to plead anew.
      The parties disagree whether the issue should be reviewed for harmless
error or for plain error. We need not resolve this dispute because Buck-Soltero
is not entitled to relief “even under the more defendant-friendly ‘harmless-
error’ standard.” United States v. Runyan, 

, 249 (5th Cir. 2002).
Under a harmless-error analysis, we ask (1) whether the district court in fact
varied from the procedures required by Rule 11 and, if so, (2) whether the
variance affected the substantial rights of the defendant. United States v.
Carreon-Ibarra, 

, 364 (5th Cir. 2012).
      Rule 11(b)(2) requires a district court to “address the defendant
personally in open court and determine that the plea is voluntary and did not
result from force, threats, or promises (other than promises in a plea
agreement).” The district court in this case ensured that Buck-Soltero’s plea
did not result from force or threats, but it failed to inquire whether his plea




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                                  No. 13-50792

was made based on any extra-plea-agreement promises.             Thus, we must
proceed to the second prong of the harmless-error analysis.
      In determining whether a variance from Rule 11 affected a defendant’s
substantial rights, we examine any portion of the record that may inform the
issue, see United States v. Vonn, 

, 74-76 (2002), and our “focus is on
whether the defendant’s knowledge and comprehension of the full and correct
information would have been likely to affect his willingness to plead guilty.”

(internal quotation marks and citation
omitted).   The record shows that defense counsel may have erroneously
believed that Buck-Soltero would be eligible for a safety-valve reduction but it
does not, as Buck-Soltero argues, support an inference that counsel promised
Buck-Soltero such a reduction or that Buck-Soltero pleaded guilty in reliance
on such a promise. Moreover, when confronted at sentencing with the fact that
he was not eligible for a safety-valve reduction, Buck-Soltero did not move to
withdraw his plea and instead merely requested more time so that counsel
could perhaps find another way to have his sentence reduced. On this record,
we conclude that the district court’s failure to comply strictly with Rule 11(b)(2)
was not harmful. See 

.
      We note that the written judgment contains a typographical error that
is inconsistent with the district court’s oral pronouncement of Buck-Soltero’s
sentence, and we therefore instruct the district court to modify the written
judgment to reflect that a five-year term of supervised release was imposed.
See United States v. Torres-Aguilar, 

, 935 (5th Cir. 2003) (when
oral sentence and written judgment conflict, oral sentence controls).         The
judgment of the district court, as MODIFIED, is AFFIRMED.




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