PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-4211
CEDRIC LEE BENTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert J. Conrad, Jr., Chief District Judge.
(3:05-cr-00105-2)
Argued: January 30, 2008
Decided: April 28, 2008
Before WILKINSON and GREGORY, Circuit Judges,
and Patrick Michael DUFFY, United States District Judge for the
District of South Carolina, sitting by designation.
Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge Gregory and Judge Duffy joined.
COUNSEL
ARGUED: Raquel Kathy Wilson, Assistant Federal Defender, FED-
ERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Asheville, North Carolina, for Appellant. Adam Christopher Morris,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON
2 UNITED STATES v. BENTON
BRIEF: Claire J. Rauscher, Executive Director, Kevin A. Tate,
Assistant Federal Defender, FEDERAL DEFENDERS OF WEST-
ERN NORTH CAROLINA, INC., Asheville, North Carolina, for
Appellant. Gretchen C. F. Shappert, United States Attorney, Char-
lotte, North Carolina, for Appellee.
OPINION
WILKINSON, Circuit Judge:
Cedric Lee Benton pled guilty to a felony conspiracy charge, and
the district court sentenced him pursuant to his plea. Benton now
appeals, arguing that the district court erred in not allowing him to
withdraw his plea as a matter of right because the magistrate judge
was not entitled to accept it. After careful consideration, we reject
Benton’s claim and affirm the judgment of the district court.
I.
During January 2005, law enforcement officials conducted several
controlled purchases of cocaine base from Cedric Lee Benton. These
purchases led to Benton’s arrest. Benton subsequently revealed his
source for cocaine, Daryl Mills, and assisted in a controlled purchase
that led to Mills’s arrest. On April 25, 2005, Benton and Mills were
charged in a nine-count indictment alleging possession with intent to
distribute cocaine base and a related conspiracy charge.
On May 3, Benton made his first appearance in court on his indict-
ment. On this date, a magistrate judge explained Benton’s charges to
him and outlined potential sentencing ranges that he faced.
Subsequently, on July 7, Benton and the government reached a plea
agreement. Benton agreed to plead guilty to conspiracy in exchange
for the government’s dismissal of the substantive possession counts
he faced. In his plea agreement, Benton agreed to allow a "duly-
qualified federal Magistrate Judge" to perform his plea "hearing
required by Fed. R. Crim. P. 11." Benton also stipulated to the fact
UNITED STATES v. BENTON 3
that there was a factual basis for the plea, and agreed to defer the
court’s confirmation of this stipulation until sentencing.
A little over a week later, on July 15, Benton appeared before a
magistrate judge for a plea hearing. At the colloquy, Benton again
affirmatively consented to a magistrate judge performing his plea
hearing and accepting "a guilty plea that cannot later be withdrawn."
JA 51. Benton also stated that he understood the charges against him
and the penalties he faced if convicted. The prosecutor then recited
the terms of Benton’s plea agreement, correctly recounting the poten-
tial range of Benton’s prison sentence (20 years to life). The prosecu-
tor stated erroneously, however, that Benton could be subjected to "no
more than five years supervised release," even though Benton actually
faced a mandatory minimum of ten years supervised release. The
court did not correct this error made by the government.
Following the prosecutor’s recital of the plea agreement, Benton
confirmed that he understood the terms of his plea, and that he was
satisfied with the services of his lawyer. The magistrate judge then
accepted Benton’s plea, finding it to be both knowing and voluntary.
One month after Benton’s guilty plea was accepted, Benton’s coun-
sel, Charles Morgan, filed a motion to withdraw his representation,
citing "irreconcilable differences." Within a month, he withdrew this
motion. Eight months later, in May 2006, Morgan again filed a
motion to withdraw. Almost simultaneously, Benton wrote a letter to
the district court raising a litany of complaints about Morgan’s repre-
sentation, including that Morgan failed to explain the mens rea ele-
ment of his conspiracy charge to him before he pled.
On June 5, 2006, Morgan filed a response to Benton’s letter,
addressing its allegations. In particular, Morgan claimed that he did
not discuss mens rea with Benton because it was "not at issue under
the facts and circumstances of this case." The district court subse-
quently allowed Morgan to withdraw as counsel, and current counsel
took over Benton’s representation.
After this change in counsel, Benton filed a motion with the district
court to withdraw his guilty plea. In his motion, Benton alleged that
his plea was accepted without a factual basis, that the plea agree-
4 UNITED STATES v. BENTON
ment’s terms were unconscionable, that Benton’s previous counsel
had been ineffective (resulting, inter alia, in Benton’s plea not being
knowing and voluntary), and that the government had breached its
obligation to file a motion for downward departure to reward Benton
for his assistance in arresting Mills. The district court reviewed the
proceedings before the magistrate judge and denied Benton’s motion,
finding that he had not established a fair and just reason for withdraw-
ing his plea.
On February 5, 2007, Benton appeared before the district court for
sentencing. Benton reiterated that he should be entitled to withdraw
his plea (for reasons similar to those advanced in his earlier motion),
and again the district court rejected his arguments. Ultimately, the dis-
trict court entered a final judgment based on Benton’s plea agreement
and sentenced Benton to 262 months in jail and ten years supervised
release. At no time before Benton’s sentencing did the district court
accept Benton’s guilty plea.
Benton now appeals the district court’s judgment and sentence,
raising three claims. First, Benton argues that the district court erred
in not allowing him to withdraw his plea. Second, Benton claims that
his plea was not knowing and voluntary. Finally, Benton argues that
his counsel provided constitutionally ineffective assistance. We
address each of Benton’s claims in turn.
II.
Benton first claims that the district court erred in denying his
motion to withdraw his guilty plea, since, under Rule 11 of the Fed-
eral Rules of Criminal Procedure, he had the right to withdraw his
plea for "any reason or no reason."
Benton’s challenge to the denial of his withdrawal motion centers
on the authority of the magistrate judge to "accept" his guilty plea.
The magistrate’s power to accept a plea is crucial because of the
wording of Rule 11(d), which lays out the circumstances under which
a defendant may withdraw a guilty plea:
(d) A defendant may withdraw a plea of guilty or nolo
contendere:
UNITED STATES v. BENTON 5
(1) before the court accepts the plea, for any rea-
son or no reason; or
(2) after the court accepts the plea, but before it
imposes sentence if:
(A) the court rejects a plea agreement under
Rule 11(c)(5); or
(B) the defendant can show a fair and just rea-
son for requesting the withdrawal.
Since Benton filed a motion to withdraw his guilty plea before the
plea was accepted by the district court, he contends that the scope of
the magistrate’s authority is of paramount importance. Benton argues
that, because the magistrate judge lacked the power to accept a plea
for the purposes of Rule 11, the district court should have allowed
him to withdraw his plea "for any reason or no reason."
III.
Before we analyze the merits of whether a magistrate judge may
accept a plea for the purposes of Rule 11, we must first consider
whether this question is properly before the court. The government
contends that Benton never raised a claim based on the authority of
the magistrate judge in the district court, and that, instead, Benton
moved to withdraw his plea for "fair and just reason[s]" under Rule
11(d)(2)(B). The government thus argues that Benton’s "challenge to
the magistrate judge’s power to accept a guilty plea . . . has been
waived." Brief of Appellee at 9.
Failure to raise an argument before the district court typically
results in the waiver of that argument on appeal. See United States v.
Evans, 404 F.3d 227, 236 n.5 (4th Cir. 2005); see also Holland v. Big
River Minerals Corp., 181 F.3d 597, 605 (4th Cir. 1999) (citing Sin-
gleton v. Wulff, 428 U.S. 106, 120 (1976)). Parties are likewise
deemed to have waived an objection to a magistrate judge’s report if
they do not present their claims to the district court. See United States
v. Midgette, 478 F.3d 616, 621-22 (4th Cir. 2007). Moreover, a gen-
6 UNITED STATES v. BENTON
eral objection to a magistrate judge’s findings is not sufficient — "a
party must object to the [magistrate’s] finding or recommendation . . .
with sufficient specificity so as reasonably to alert the district court
of the true ground for the objection." Id. at 622 (noting that the Third,
Sixth, Seventh, and Tenth Circuits require similar specificity).
In this case, Benton did not present his challenge to the magistrate
judge’s authority with "sufficient specificity" to preserve his claim.
Although Benton began his motion to withdraw his plea by generally
referencing "Fed. R. Crim. P. 11 (d)(1) and (2), as well as, the Fifth
and Sixth Amendments of the United States Constitution," this sort of
general allusion to various legal claims is precisely the sort of plead-
ing that Midgette held was insufficient to prevent waiver.
The touchstone of our inquiry must be whether the district court
was made aware of the "true ground for [Benton’s] objection." We
conclude that it was not. Nowhere in his motion to withdraw his plea
did Benton claim that the magistrate judge was unauthorized to accept
his plea for the purposes of Rule 11. Likewise, nowhere did Benton
mention that he should be allowed to withdraw his plea "for any rea-
son or no reason"; instead, Benton specifically states in his motion
that "a defendant has no absolute right to withdraw his plea." Indeed,
the entirety of Benton’s motion to withdraw focused on his "fair and
just reasons" for doing so.
Ultimately, Benton simply did not make the district court aware of
any concerns he may have had about the magistrate judge’s authority,
and the district court therefore had no reason to address the issue. As
a result, the waiver doctrine, which preserves judicial resources and
makes certain that appellate courts have well-formed records to
review, requires us to consider Benton’s argument waived.1 See Mid-
1
Although Benton claims his challenge to the magistrate judge’s
authority is an unwaivable jurisdictional argument, it is not properly con-
strued as such. The district court clearly had the jurisdictional authority
to sentence Benton, and Benton does not argue otherwise, nor could he.
Instead, Benton’s claim is one of traditional legal error. In essence,
Benton argues that the district court accorded an improper amount of
weight to the plea proceedings conducted by the magistrate judge. His
claim is thus analytically similar to any challenge to the district court’s
acceptance of his plea — challenges that are legal in nature, not jurisdic-
tional.
UNITED STATES v. BENTON 7
gette, 478 F.3d at 622; see also United States v. Ciapponi, 77 F.3d
1247, 1249-50 (10th Cir. 1996) (stating that a defendant did not pre-
serve his challenge to a magistrate judge’s authority to conduct a plea
colloquy because he raised no objection below).
IV.
Because Benton did not raise his challenge to the magistrate
judge’s authority below, we review his claim for plain error. See
United States v. Olano, 507 U.S. 725, 731-32 (1993). Under that deci-
sion, Benton must establish the following three elements to demon-
strate plain error: (1) that the defect below was, in fact, error; (2) that
the error was "plain;" and (3) that the error affected Benton’s "sub-
stantial rights." Id. at 732. And even if Benton is able to demonstrate
that all three of these elements are present, a court should not exercise
its discretionary authority to "correct the forfeited error . . . unless [it]
seriously affect[s] the fairness, integrity or public reputation of judi-
cial proceedings." Id. (internal quotation omitted).
A.
To demonstrate "error" for the purposes of plain error review, a
defendant must show that "a legal rule was violated during the district
court proceedings." Id. at 733-34. After careful consideration, we do
not think Benton has made such a showing. For the reasons discussed
below, we believe that magistrate judges possess the authority to bind
defendants to their plea for the purposes of Rule 11, so long as district
judges retain the authority to review the magistrate judge’s actions de
novo.
Questions concerning the scope of a magistrate judge’s authority
have both statutory and constitutional components. In order to exer-
cise authority over any portion of a federal trial, magistrate judges
must first have been granted the statutory authority to do so by Con-
gress. Second, any statutory authority granted to a magistrate judge
must be consistent with trial participants’ constitutional rights and the
structural provisions of Article III.
We consider the scope of a magistrate judge’s statutory and consti-
tutional authority in light of the Supreme Court’s decision in Peretz
8 UNITED STATES v. BENTON
v. United States, 501 U.S. 923 (1991). In Peretz, the Court held that
magistrate judges have the authority to supervise voir dire in felony
proceedings, providing the litigants consent to the magistrate judge’s
authority. Id. at 940.
In reaching this decision, the Court located the statutory authority
for magistrates to preside over voir dire in the text of the Federal
Magistrates Act. See Federal Magistrates Act of 1968, Pub. L. No. 90-
578, 82 Stat. 1107, codified as amended at 18 U.S.C. §§ 3401-02; 28
U.S.C. §§ 631-39 (2000). The Magistrates Act, which was passed by
Congress to ease the rapidly increasing and "overwhelming caseload"
burden of many district courts, United States v. Khan, 774 F. Supp.
748, 750 (E.D.N.Y. 1991), delineates and circumscribes the scope of
magistrate judges’ authority. In doing so, the Act explicitly grants
magistrate judges a number of specific powers, such as the authority
to preside over entire civil, see 28 U.S.C. § 636(c)(1), and misdemea-
nor criminal, see 18 U.S.C. § 3401, trials with the parties’ consent;
the ability to issue certain civil and criminal contempt orders, see 28
U.S.C. § 636(e); the "power to administer oaths and affirmations," id.
§ 636(a)(2); and the authority "to hear and determine any pretrial mat-
ter pending before the court, except" for eight enumerated dispositive
motions, including summary judgment motions, id. § 636(b)(1)(A).
Most importantly in Peretz, the Act also grants magistrate judges
the authority to perform, when directed to do so by district judges,
"such additional duties as are not inconsistent with the Constitution
and laws of the United States." 28 U.S.C. § 636(b)(3). Since the Mag-
istrate Act does not explicitly grant magistrate judges the power to
conduct voir dire in felony cases, any authority to do so would have
to be located in this residual "additional duties" clause.
In Peretz, the Court reasoned that the "generality of the category
of ‘additional duties’ indicates that Congress intended to give federal
judges significant leeway to experiment with possible improvements
in the efficiency of the judicial process." 501 U.S. at 932. The Court
stated therefore that district judges could delegate to magistrate
judges duties "comparable in responsibility and importance" to "spec-
ified duties assigned to magistrates" elsewhere in the Magistrates Act.
Id. at 933. Since the authority to conduct an entire civil, see 28 U.S.C.
§ 636(c), or misdemeanor criminal, see 18 U.S.C. § 3401, trial (with
UNITED STATES v. BENTON 9
the parties’ consent) was "comparable" to presiding over voir dire at
a felony trial (again with the parties’ consent), the Court held that the
express statutory authority to do the former meant that the latter could
be considered an "additional duty" under 28 U.S.C. § 636(b)(3). Per-
etz, 501 U.S. at 933.
Peretz then addressed two potential constitutional concerns. First,
the Court noted that "it is arguable that a defendant in a criminal trial
has a constitutional right to demand the presence of an Article III
judge at voir dire." Id. at 936. However, the defendant’s consent alle-
viates this concern, as the Constitution allows criminal defendants to
waive their individual rights. Id. at 936-37 (listing numerous prece-
dents that allowed criminal defendants to waive their constitutional
rights).
Second, the Court held that magistrate judges presiding at felony
voir dire did not violate any of Article III’s unwaivable "structural
protections." Id. at 937-39. To begin, the Court noted that district
courts retained ultimate control over magistrate judges: district courts
have the power to appoint and remove magistrates; the "‘ultimate
decision’" whether to invoke the magistrate’s assistance is made by
the district court; and, finally, the "decision whether to empanel the
jury whose selection a magistrate has supervised remains entirely
with the district court." Id. at 937 (quoting United States v. Raddatz,
447 U.S. 667, 683 (1980)). The Court also emphasized that a district
court would conduct de novo review of the magistrate judge’s rulings,
if one of the parties requested such review. Peretz, 501 U.S. at 939.
Therefore, since "the entire process takes place under the district
court’s total control and jurisdiction, there is no danger that use of the
magistrate involves a congressional attemp[t] to transfer jurisdiction
[to non-Article III tribunals] for the purpose of emasculating constitu-
tional courts." Peretz, 501 U.S. at 937 (internal quotations omitted).
A magistrate judge conducting voir dire for a felony trial thus does
not violate Article III’s structural provisions.
B.
Applying the teachings of Peretz, numerous courts of appeals have
found that magistrate judges are able to conduct plea colloquies if
10 UNITED STATES v. BENTON
directed to do so by the district court and if they do so with the con-
sent of the parties. See United States v. Osborne, 345 F.3d 281, 285
(4th Cir. 2003); see also United States v. Reyna-Tapia, 328 F.3d
1114, 1118-21 (9th Cir. 2003) (en banc); United States v. Torres, 258
F.3d 791, 794-96 (8th Cir. 2001); United States v. Dees, 125 F.3d
261, 263-69 (5th Cir. 1997); United States v. Ciapponi, 77 F.3d 1247,
1249-52 (10th Cir. 1996); United States v. Williams, 23 F.3d 629,
632-34 (2d Cir. 1994). The logic of these decisions is straightforward:
"allowing a magistrate judge to supervise voir dire proceedings in a
felony trial implicates far greater discretion than the" largely "‘minis-
terial function’" played by a court during a plea colloquy. Osborne,
345 F.3d at 288, 287 (quoting Dees, 125 F.3d at 266). The court in
Williams made the point well:
An allocution is an ordinary garden variety type of ministe-
rial function that magistrate judges commonly perform on a
regular basis. The catechism administered to a defendant is
now a standard one, dictated in large measure by the com-
prehensive provisions of Rule 11 itself . . . . Further, admin-
istering an allocation is less complex than a number of
duties the Magistrates Act specifically authorizes magis-
trates to perform.
Williams, 23 F.3d at 632. Thus, under Peretz, these courts have found
that conducting a plea colloquy could be considered an "additional
duty" within the meaning of 28 U.S.C. § 636(b)(3). See, e.g.,
Osborne, 345 F.3d at 288.
Constitutionally, the courts of appeals again followed Peretz in
finding that magistrate judges could conduct plea colloquies. See, e.g.,
id. at 288-90. Emphasizing both the ultimate control of the district
court over the office and activities of the magistrate judge and the liti-
gants’ right to seek de novo review of the Rule 11 proceedings as a
matter of right, the courts found no Article III violation. See, e.g., id.
at 288-90.
C.
Benton admits that the "law is clear" on the fact "that magistrate
judges may conduct" plea colloquies. Reply Brief of Appellant at 8.
UNITED STATES v. BENTON 11
Benton contends, however, that this does not answer the question
presented by his claim. To this end, Benton argues "that there is an
important, not a technical, difference between conducting a plea col-
loquy and accepting the plea." Id. This is because, Benton asserts, a
"magistrate judge[ ] can preside" over a plea colloquy, but can only
"submit proposed findings and conclusions of law . . . to the district
court for approval" as to a plea acceptance. Id. But Benton’s assertion
simply begs the question — it does not explain why, as a matter of
law, a magistrate’s acceptance of a plea should be considered differ-
ent from his conducting a plea colloquy.
Certainly, Benton’s distinction between plea colloquy and plea
acceptance does not appear to necessitate different results under Per-
etz. The "comprehensive provisions of Rule 11" not only "carefully
explain what a court must inquire about" and "what [a magistrate]
should advise a defendant" of, but they also detail "what [a magis-
trate] should determine before accepting a plea." Williams, 23 F.3d at
632. Thus, the acceptance of a plea is merely the natural culmination
of a plea colloquy. See, e.g., id. Much like a plea colloquy, plea
acceptance involves none of the complexity and requires far less dis-
cretion than that necessary to perform many tasks unquestionably
within a magistrate judge’s authority, such as conducting felony voir
dire and presiding over entire civil and misdemeanor trials. It is thus
difficult to see how a plea acceptance is not comparable in responsi-
bility and importance to a plea colloquy, and therefore an "additional
duty" within the Supreme Court’s interpretation of 28 U.S.C.
§ 636(b)(3).
Moreover, a magistrate judge’s acceptance of a plea, with the con-
sent of the parties, does not appear to present any constitutional prob-
lems, either generally or in this case. Peretz and the plea colloquy
cases discussed earlier make clear that a defendant’s consent waives
any individual right to demand an Article III tribunal. In this case,
Benton affirmatively consented to the magistrate judge performing his
Rule 11 plea proceeding, consented to the magistrate judge accepting
his "guilty plea that cannot later be withdrawn," and never objected
to the magistrate or the district judge as to the magistrate’s power to
take his plea. Thus, Benton has no individual constitutional claim.
Likewise, the district court’s ultimate control over the magistrate’s
plea acceptance satisfies any Article III structural concerns in pre-
12 UNITED STATES v. BENTON
cisely the same manner it would in Peretz or the plea colloquy cases.
Benton presents no evidence that district judges are unable to exercise
effective oversight of a magistrate judge’s acceptance of a felony
plea. Defendants with substantive or procedural concerns about their
plea proceedings before a magistrate judge are entitled to de novo
review in the district court. While the standard of review is de novo,
the substantive rule of decision is whether the defendant has estab-
lished a "fair and just" reason to withdraw his plea after the magistrate
judge has accepted it. A "fair and just" reason would obviously
include a defective plea proceeding before the magistrate judge. See
United States v. Bowman, 348 F.3d 408, 414 (4th Cir. 2003) ("The
most important consideration in resolving a motion to withdraw a
guilty plea is an evaluation of the Rule 11 colloquy at which the
guilty plea was accepted.").
This case underscores the role district courts play in protecting the
structural integrity of Article III. In this case, Benton had ample
opportunity to raise any concerns he had over his magistrate-
conducted plea proceeding with the district judge. In fact, the district
court reviewed de novo Benton’s claims that his plea (taken by a mag-
istrate) was not supported by a factual basis, unconscionable, the
result of ineffective assistance, and breached by the government.
Furthermore, we note the practical drawbacks of adopting Benton’s
position. Benton, in essence, is asking us to grant defendants a dry run
or dress rehearsal — a procedure in which a defendant can agree to
a plea before a magistrate judge, and then withdraw that plea without
any complaint that the Rule 11 hearing was deficient in any way.
This, of course, risks rendering plea proceedings before magistrate
judges meaningless. See United States v. Hyde, 520 U.S. 670, 677
(1997) (noting, in a slightly different setting that, "[w]ere withdrawal
automatic in every case" for any reason, "the guilty plea would
become a mere gesture, a temporary and meaningless formality"
(internal quotation omitted)). In cases where a defendant withdraws
his plea for no reason, the proceedings before the magistrate judge
will have been rendered a nullity — a complete waste of judicial
resources. In fact, making Rule 11 hearings non-binding may encour-
age defendants to use magistrate-led colloquies as go-throughs in
order to gauge whether they may later experience "buyer’s remorse."
UNITED STATES v. BENTON 13
The government contends that embracing Benton’s position would
"remake plea-taking procedure . . . throughout the United States."
Brief of Appellee at 12. One need not subscribe to such a dramatic for-
mulation in order to foresee the negative consequences that could
result from adopting Benton’s view. Those district courts that cur-
rently employ magistrate judges to conduct plea hearings might feel
pressure to revisit their plea procedures. Perhaps district courts could
stop delegating plea hearings to magistrates. But such a change would
only exacerbate the docket tensions already felt by district courts —
the very tensions that led to the creation of the office of magistrate
judge. We are most reluctant to compel district courts to remake plea-
taking procedures in this way.
We thus find that the district court did not commit error in refusing
to allow Benton to withdraw his plea "for any or no reason." Many
different reasons support the conclusion that the acceptance of a plea
is an "additional duty" under 28 U.S.C. § 636(b)(3) and Peretz. To
wit, acceptance of a plea is a duty that does not exceed the responsi-
bility and importance of the more complex tasks a magistrate is
explicitly authorized to perform, the parties have consented to the
procedure, and the ultimate control of the district judge over the plea
process alleviates any constitutional concerns. And just as a practical
matter, allowing magistrate judges to accept pleas for the purposes of
Rule 11 preserves judicial resources — the very goal underlying the
creation of the office of magistrate judge — and prevents litigants
from exploiting bifurcated plea procedures.
D.
Since Benton is unable to demonstrate any "error," we find that he
fails to meet even the first prong of the plain error standard. More-
over, Benton is also unable to meet at least two of the other require-
ments necessary to demonstrate plain error.
First, any error committed by the district court certainly does not
rise to the level of plain error. Plain error must be "‘obvious’" and
"clear under current law." Olano, 507 U.S. at 734 (quoting United
States v. Young, 470 U.S. 1, 17 n.14 (1985)). Given the arguments
14 UNITED STATES v. BENTON
detailed above in support of the district court’s position, any error the
district court committed was certainly neither "obvious" nor "clear."2
Second, we also note that, were there any error in this case, it
would not "seriously affect the fairness, integrity or public reputation
of judicial proceedings." There is no question as to Benton’s guilt,
and the district court reviewed de novo all of Benton’s claims con-
cerning his plea proceedings. Moreover, Benton himself consented to
the magistrate judge presiding over his plea. Thus, Benton has not
presented the sort of "exceptional circumstances" that would lead this
court to overlook his failure to raise his objection before the district
court. United States v. Atkinson, 297 U.S. 157, 160 (1936).
V.
Benton next claims that his plea was not knowing and voluntary.
Benton raised this claim with the district court before his sentencing,
and the district court rejected it, finding that Benton had not presented
a fair and just reason to withdraw his plea. We review the district
2
Benton directs us to the Ninth Circuit’s recent decision in United
States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (en banc). In
Reyna-Tapia, the Ninth Circuit held that a magistrate judge possesses the
authority to conduct a plea colloquy. In doing so, the court noted that it
felt comfortable recognizing that a magistrate judge possessed this
authority because of the existence of several "procedural safeguards,"
including the fact that "defendants have an absolute right to withdraw
guilty pleas taken by magistrate judges at any time before they are
accepted by the district court." Reyna-Tapia, 328 F.3d at 1121. The court
found support for this statement in two earlier Ninth Circuit cases. See
United States v. Alvarez-Tautimez, 160 F.3d 573 (9th Cir. 1998); United
States v. Washman, 66 F.3d 210 (9th Cir. 1995).
While we recognize that Reyna-Tapia and the earlier Ninth Circuit
cases offer support for Benton’s position, we do not feel compelled to
follow them. In none of these cases did the Ninth Circuit consider at
length the question we confront here: whether the magistrate judge has
the power to accept a plea for the purposes of Rule 11. Likewise, Benton
directs us to no case in which the Ninth Circuit has performed a Peretz
analysis to specifically determine whether the acceptance of a plea is an
"additional duty" under 28 U.S.C. § 636(b)(3). We thus do not find these
cases dispositive in the matter before us.
UNITED STATES v. BENTON 15
court’s decision for abuse of discretion. See United States v. Uba-
kanma, 215 F.3d 421, 424 (4th Cir. 2000).
Rule 11(b)(1) of the Federal Rules of Criminal Procedure states
that, for a court to accept a plea, it must inform the defendant of, inter
alia, "the nature of each charge to which the defendant is pleading"
and "any maximum possible penalty, including imprisonment, fine,
and term of supervised release." Fed. R. Crim. P. 11(b)(1)(G) & (H).
Benton argues that the court in this case failed to meet both of these
requirements.
First, Benton claims that he was never made aware of the elements
of the conspiracy charge to which he pled or "the concept of vicarious
liability for drugs trafficked during the conspiracy." Brief of Appellant
at 20. Second, Benton contends that he was informed "that the maxi-
mum term of supervised release was five years," despite the fact that
Benton faced a mandatory minimum of ten years supervised release.
Id. at 20-21.
We find Benton’s arguments to be without merit. First, Benton was
clearly informed of the nature of the conspiracy charge to which he
pled. As Benton recognizes, this court’s decision in United States v.
DeFusco, 949 F.2d 114 (4th Cir. 1991), establishes the standard under
which we evaluate a court’s compliance with Rule 11(b)(1)(G): a "de-
fendant must receive notice of the true nature of the charge rather than
a rote recitation of the elements of the offense." Id. at 117.
There is ample evidence in the record to indicate that Benton was
sufficiently aware of the nature of his conspiracy charge. While it is
undoubtedly true that Benton initially did not understand his conspir-
acy charge (during his initial appearance before the court on his
indictment), the court promptly re-explained the charge to Benton
when he expressed a lack of understanding. Immediately after this
second explanation, Benton asked a very specific question about the
charge — who his conspirators were, a fact that could not be revealed
because the indictment was under seal — demonstrating his under-
standing of "the nature" of conspiracy. Moreover, Benton confirmed
this understanding by affirmatively representing at his plea colloquy
that he understood his conspiracy charge, and the consequences of his
guilty plea.
16 UNITED STATES v. BENTON
Second, while Benton was certainly misinformed as to the potential
length of his supervised release, any error on this front was harmless.
In a similar case, the Seventh Circuit considered whether a defen-
dant’s plea was rendered invalid by the trial court’s "fail[ure] to
inform her of the effect of supervised release" on her sentence,
despite the fact that the defendant ultimately received an overall sen-
tence (including prison time and supervised release) within the statu-
tory sentencing range communicated to her. United States v. Schuh,
289 F.3d 968, 974 (7th Cir. 2002). Terming the claim "frivolous," the
court rejected the defendant’s argument. Id.
We now do the same here: Benton ultimately received the statutory
minimum amount of supervised release, and a total sentence (includ-
ing prison time and supervised release) below his statutory maximum
of life imprisonment, and within the sentencing range of 20 years to
life communicated to him at his plea colloquy. Simply put, it does not
constitute reversible error to inadvertently misinform a defendant of
the length of his term of supervised release, so long as his overall sen-
tence fits within the sentencing range communicated to him at his
plea colloquy.
VI.
Finally, Benton claims that his counsel was constitutionally inef-
fective. In particular, Benton argues that his "original trial counsel
failed to explain key concepts" to him — specifically that of mens rea
— and, that, absent this failure, "it is reasonably probable" that he
would not have pled guilty. Brief of Appellant at 26.
Under the Supreme Court’s well-known Strickland test, to establish
a Sixth Amendment claim for ineffective assistance of counsel a
defendant must show (1) objectively unreasonable performance and
(2) prejudice stemming from that performance. See Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). Ineffective assistance
claims are generally not cognizable on direct appeal, however, "unless
it conclusively appears from the record that defense counsel did not
provide effective representation." United States v. Richardson, 195
F.3d 192, 198 (4th Cir. 1999) (internal quotations omitted).
Benton can make no such showing in this case. Benton’s original
counsel states that he did not discuss mens rea with his client because
UNITED STATES v. BENTON 17
it was "not at issue under the facts and circumstances of this case" —
a case in which the government had both Benton’s admission that he
participated in drug trafficking and extremely strong evidence of Ben-
ton’s guilt (from undercover controlled purchases). Benton does not
dispute this assertion other than to baldly claim that he would not
have pled guilty if he had discussed mens rea with his counsel. This
bare assertion does not provide "conclusive evidence" of either objec-
tively unreasonable performance or prejudice, and we therefore reject
Benton’s claim.
VII.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.