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87 F3d 1324 United States v. Maldonado-Enriquez

87 F.3d 1324

UNITED STATES of America, Plaintiff-Appellee,
v.
Marcelina MALDONADO-ENRIQUEZ, Defendant-Appellant.

No. 91-50122.

United States Court of Appeals, Ninth Circuit.

Submitted April 9, 1996.*
Decided June 5, 1996.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

Before: SCHROEDER and LEAVY, Circuit Judges, and TRIMBLE.

2

MEMORANDUM**

3

Pursuant to a Fed.R.Crim.P. 11(e)(1)(B) plea agreement, Marcelina Maldonado-Enriquez pleaded guilty to charges of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), and aiding and abetting in violation of 18 U.S.C. § 2. Although the district court failed to warn Maldonando-Enriquez that she would be bound by her guilty plea even if the court later chose to reject the terms of her plea agreement, see Fed.R.Crim.P. 11(e)(2), the court did not reject the agreement and Maldonado-Enriquez did not object to the court's omission. Maldonado-Enriquez filed timely notices of appeal from both her conviction and sentence. Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), Maldonado-Enriquez' appellate counsel has filed a brief indicating the absence of any meritorious issues for review and has requested leave to withdraw. Based on our independent examination of the record, see Penson v. Ohio, 488 U.S. 75, 82-83 (1988), we have raised nostra sponte the question of whether the district court committed error by failing to give the complete warning required by Rule 11(e)(2). See Fed.R.Crim.P. 52(b).

4

Unlike United States v. Kennell, 15 F.3d 134 (9th Cir.1994) and United States v. Graibe, 946 F.2d 1428 (9th Cir.1991), the district court did not reject the recommended sentence contained in the plea agreement, but sentenced Maldonado-Enriquez in accord therewith. As Maldonado-Enriquez' substantial rights were not adversely affected by the district court's failure to recite the Rule 11(e)(2) warning, there was no reversible error. See United States v. Chan, --- F.3d ----, ----, No. 94-50585 (May 6, 1996).

5

The conviction and sentence are AFFIRMED. Counsel's motion to withdraw is GRANTED.

*

This case is appropriate for submission on the briefs and without oral argument pursuant to Fed.R.App.P. 34(a) and 9th Cir.R. 34-4

*

The Honorable James T. Trimble, Jr., United States District Judge for the Western District of Louisiana, sitting by designation

**

This disposition is not suitable for publication and may not be cited to or by the courts of this Circuit except as provided by 9th Cir.R. 36-3