[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15886 ELEVENTH CIRCUIT
AUGUST 18, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00014-CR-1-SPM-AK-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRANDON TERELL STEVENSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(August 18, 2010)
Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Brandon Stevenson appeals his conviction for conspiracy to distribute and to
possess with intent to distribute more than five kilograms of cocaine and more than
fifty grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and his resulting
sentence of life imprisonment followed by ten years of supervised release. After
review, we affirm.
I.
On appeal, Stevenson argues that he did not knowingly and voluntarily plead
guilty because he was not properly advised that he would be sentenced to a
mandatory life sentence, and thus he did not understand the consequences of his
plea. In essence, he argues that the failure to ensure that he understood the
consequences of his plea constituted a violation of Rule 11 of the Federal Rules of
Criminal Procedure. He requests that his conviction be vacated and that he be
allowed to withdraw his plea.
Rule 11 of the Federal Rules of Criminal Procedure covers the proper
procedure for considering and accepting a guilty plea. We review Rule 11
objections raised for the first time on appeal for plain error. United States v.
Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005). Under plain error review, the
defendant must establish: (1) an error, (2) that is plain, and (3) that affects
substantial rights. Id. When these three factors are met, we may then exercise our
discretion and correct the error if it “seriously affect[s] the fairness, integrity, or
2
public reputation of the judicial proceedings.” Id. (internal quotation marks
omitted) (alteration in original). When determining whether a Rule 11 error in the
plea colloquy affects a defendant’s substantial rights, the appellate court may refer
to the entire record. United States v. Vonn, 535 U.S. 55, 74-75, 122 S. Ct. 1043,
1054-55 (2002).
“A guilty plea involves the waiver of a number of a defendant’s
constitutional rights, and must therefore be made knowingly and voluntarily to
satisfy the requirements of due process.” Moriarty, 429 F.3d at 1019. Before
accepting a guilty plea, a judge must address the core concerns contained in Rule
11(b): (1) that the guilty plea is voluntary; (2) that the defendant understands the
nature of the charges; and (3) that the defendant is aware of the consequences of
his plea. Id. This requires the district court to, inter alia, inform the defendant of
“any maximum possible penalty” and “any mandatory minimum penalty.” Fed. R.
Crim. P. 11(b)(1)(H)-(I).
Here, Stevenson cannot demonstrate that the district court committed plain
error because the record reflects that Stevenson knew he was subject to a
mandatory life sentence. Before Stevenson entered his plea, the government filed
an Information and Notice of Intent that informed Stevenson that it was seeking
enhanced penalties based on his prior convictions that would subject him to a
3
minimum mandatory sentence of life imprisonment. Looking to the plea
agreement itself, the first paragraph covering the terms of Stevenson’s plea states
that “defendant would ordinarily face a sentence of not less than ten years or more
than life imprisonment,” but “based upon the defendant’s prior felony drug
convictions, he faces a sentence of not less that Life imprisonment.” The
agreement goes on to state that the “parties further understand and agree that the
District Court’s discretion in imposing sentence is limited only b[y] the statutory
maximum sentence and any mandatory minimum sentence prescribed by statute for
the offense.” At his change of plea hearing before the magistrate judge, Stevenson
was asked whether he could read and write the English language. He responded
affirmatively. He was then asked whether he was able “to read all of the
documents like the indictment and the plea agreement.” He responded
affirmatively. The magistrate judge then went on to describe the penalty
Stevenson was facing. The judge noted that a conviction carried “a sentence of not
less than life imprisonment.” Stevenson was asked whether he understood that
penalty. He responded affirmatively. Stevenson reiterated that he fully
understood the agreement and its consequences. At the close of the hearing, the
magistrate judge expressly found that Stevenson understood the consequences of
pleading guilty.
4
There is a strong presumption that statements made during a plea colloquy
are true. United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994).
Consequently, a defendant bears a heavy burden to show that his statements under
oath were false. United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988).
Stevenson has not convinced us that the statements he made at the change of plea
hearing professing understanding of the mandatory life sentence he was facing
were false. He now argues that a person of his education and background could
not have understood that he was facing a mandatory life sentence because the
magistrate judge then went on to describe the supervised release penalty he faced.
The magistrate judge was required by Fed. R. Crim. P. 11(b)(1)(H) & (I) to inform
Stevenson of any maximum penalty, including supervised release, and to inform
him of any mandatory minimum penalty. Under 21 U.S.C. § 841(b)(1)(A),
Stevenson was subject to a mandatory ten years of supervised release; thus, the
magistrate judge was required to inform him of this fact. Nothing at the change of
plea hearing indicates that Stevenson understood the ten years supervised release
penalty to somehow supersede or alter the mandatory life sentence he was
otherwise facing.1 Stevenson also points out that at his sentencing hearing, when
1
Stevenson argues that discussing a term of supervised release after a term of life
imprisonment is illogical; however, at that time, he was still seeking a Substantial Assistance
departure pursuant to U.S.S.G. § 5K1.1 that could have allowed for a sentence below the
mandatory life sentence he was otherwise facing. See U.S.S.G. § 5K1.1 comment. (n.1). Had he
5
the district court asked him whether his lawyer had discussed the sentence required
by law in his case that he replied that it was a “ten to life” sentence. Stevenson
then stated that his lawyer had not informed him that a life sentence was mandated
by statute in his case. The district court asked Stevenson’s lawyer whether he had
advised Stevenson of the sentence he was facing. Stevenson’s lawyer replied: “I
don’t know that I can ethically say that without violating confidentiality, but I
would indicate to the Court that I properly told Mr. Stevenson the Guideline
sentence and the sentence he was facing if he was not successful in obtaining a
5K1 from the government, which was life imprisonment.” Thus, his lawyer
informed him that if he did not receive a departure pursuant to § 5K1.1, which he
did not, that he was subject to a life sentence. This statement was in agreement
with the Information and Notice of Intent, the plea agreement itself, and statements
at the change of plea hearing, all of which indicated that Stevenson was subject to a
mandatory minimum life sentence and that he understood as such.
Morever, “a defendant who seeks reversal of his conviction after a guilty
plea, on the ground that the district court committed plain error under Rule 11,
must show a reasonable probability that, but for the error, he would not have
received that departure, any supervised release would have been quite consequential.
Stevenson does not challenge the fact that the magistrate judge erroneously identified the
term of supervised release as life instead of ten years at the hearing.
6
entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S. Ct.
2333, 2340 (2004). “A defendant must thus satisfy the judgment of the reviewing
court, informed by the entire record, that the probability of a different result is
sufficient to undermine confidence in the outcome of the proceeding.” Id.
Stevenson has also not shown to a reasonable probability that, but for the alleged
error, he would not have entered the plea. He contends that the mandatory
sentence was not made clear to him until just before sentence was imposed. Yet he
did not move at that time to withdraw his guilty plea. Moreover, even assuming
arguendo that the requirements of Rule 11 were not met at the plea change hearing,
Stevenson still would have been motivated at that time to enter the plea agreement
because it kept open the possibility of a § 5K1.1 departure, which might have
resulted in a lower sentence. Certainly Stevenson brings this appeal and requests
the opportunity to withdraw his plea, but that alone is not enough to convince us to
a reasonable probability that he would not have entered the plea.
Accordingly, we affirm Stevenson’s conviction.
II.
Stevenson also argues that his mandatory life sentence violates the Fifth and
Sixth Amendments because his qualifying prior convictions were not supported by
a jury finding. Stevenson concedes that this argument is contrary to Supreme Court
7
and Eleventh Circuit precedent, but asserts that he wishes to preserve his argument.
As Stevenson recognizes, the Supreme Court has held that the Sixth
Amendment does not require the government to allege in its indictment or to prove
beyond a reasonable doubt that a defendant’s prior convictions qualify him for
enhanced sentencing. Almendarez-Torres v. United States, 523 U.S. 224, 226, 118
S. Ct. 1219, 1222 (1998). Because we are “bound by Almendarez-Torres until it is
explicitly overruled by the Supreme Court,” Stevenson’s argument is foreclosed by
precedent. United States v. Dowd, 451 F.3d 1244, 1253 (11th Cir. 2006). We
acknowledge both his desire to preserve this issue for appeal and his concession
that this panel can offer no relief on this point. Accordingly, we affirm
Stevenson’s sentence.
AFFIRMED.
8