492 F2d 771 Fernandez v. United States

492 F.2d 771

Rafael Narberto Pardo FERNANDEZ, Petitioner-Appellant,
UNITED STATES of America, Respondent-Appellee.

No. 72-2515 Summary Calendar.*

United States Court of Appeals, Fifth Circuit.

April 15, 1974, Rehearing Denied June 7, 1974.

Rafael Narberto Pardo Fernandez, pro se.

Robert W. Rust, U.S. Atty., Miami, Fla., for respondent-appellee.

Before WISDOM, GODBOLD and RONEY, Circuit Judges.


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The only issue requiring discussion in this appeal from denial of a 2255 motion is whether under Rule 11 Fed.R.Crim.P. a defendant entering a guilty plea must be advised that he is ineligible for parole. In Trujillo v. United States, 5 Cir., 377 F.2d 266, cert. denied, 389 U.S. 899, 88 S.Ct. 224, 19 L.Ed.2d 221 (1967), this court held there was no such requirement, and that decision can be modified only by an en banc decision of the court. Sua sponte we took en banc United States v. Farias, 459 F.2d 738 (CA5, 1972), to determine whether Trujillo should any longer be followed, and we withheld decision in this case to await the result in Farias. The court en banc has, however, pretermitted decision of that issue, United States v. Farias, 488 F.2d 852 (CA5, 1974), with the result that Trujillo and now the panel opinion in Farias remain viable. We pretermit discussion of the differing views of the members of this panel, since in any event we are bound by Trujillo and now by the panel opinion in Farias, unless and until the full court decides otherwise.


The other two points raised by appellant are totally without merit.




Rule 18, 5 Cir. Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I