[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15511 ELEVENTH CIRCUIT
SEPTEMBER 30, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00074-CR-001-CAR-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MILTON JACKSON,
a.k.a. Michael Jackson,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(September 30, 2010)
Before EDMONDSON, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Milton Jackson appeals his conviction for being a felon in possession of a
firearm, 18 U.S.C. §§ 922(g)(1), 924(e)(1). No reversible error has been shown;
we affirm.
On appeal, Jackson argues that his guilty plea is invalid and should be set
aside because the district court failed to comply with Fed.R.Crim.P. 11(b)(1)(N):
the court’s explanation of the sentence appeal waiver differed materially from the
explanation of the appeal wavier contained in the plea agreement. Therefore,
Jackson contends, he did not fully understand the consequences of his plea and,
thus, did not knowingly and voluntarily enter into the plea.
Because Jackson raised no objection about Rule 11 error in the district court,
we review his present claim only for plain error. United States v. Camacho, 233
F.3d 1308, 1313 (11th Cir. 2000). “Under the plain error standard, an error is
reversible only if it is clear or obvious and affects substantial rights.” Id. (internal
quotation omitted). On plain-error review, we may review “the whole record when
considering the effect of any error on substantial rights.” United States v. Monroe,
353 F.3d 1346, 1350 (11th Cir. 2003) (citation omitted).
The district court must “conduct an inquiry into whether the defendant
makes a knowing and voluntary guilty plea.” United States v. Hernandez-Fraire,
208 F.3d 945, 949 (11th Cir. 2000). This general obligation requires the court to
2
address three core concerns underlying Rule 11: (1) that the guilty plea be free
from coercion; (2) that the defendant understand the charges against him; and (3)
that the defendant be aware of the direct consequences of his guilty plea.
Camacho, 233 F.3d at 1314. Rule 11 directs specifically that the court inform the
defendant of, and make sure the defendant understands, certain matters. See
Fed.R.Crim.P. 11(b)(1)(A)-(N). In pertinent part, the court is obligated to inform
defendant of “the terms of any plea-agreement provision waiving the right to
appeal or to collaterally attack the sentence.” Fed.R.Crim.P. 11(b)(1)(N).
Jackson’s plea agreement provided that he waived “any right to a direct
appeal or other review of [his] sentence . . . after conviction except in the case of
an upward departure from the guidelines . . . and any claim of ineffective
assistance of counsel.” At the plea colloquy, the district court addressed the appeal
waiver, explaining that Jackson had the right to appeal his sentence in limited
circumstances, including “an unconstitutional upward departure . . . a claim of
ineffective assistance of counsel, [and] if [his] sentence was imposed in violation
of law.” The district court did not explain the waiver as it related to collateral
attacks.
The court technically may have violated Rule 11 when the court stated that
Jackson could appeal his sentence if it was imposed in violation of the law and
3
when the court did not explain that the waiver agreement applied to collateral
attacks, as required by Rule 11(b)(1)(N). But the technical violation and omission
do not invalidate the agreement as long as the record reflects that Jackson
understood the waiver. See Hernandez-Fraire, 208 F.3d at 950 (we “will uphold a
plea colloquy that technically violates Rule 11, but adequately addresses the three
core concerns”); United States v. Benitez-Zapata, 131 F.3d 1444, 1445-46 (11th
Cir. 1997) (upholding a waiver even though the plea colloquy did not explain all
the provisions of the appeal waiver).
And we conclude, upon review of the entire record, that the district court
addressed adequately the core concerns of Rule 11 and that Jackson understood the
waiver.* The court specifically questioned Jackson during the plea colloquy about
the sentence-appeal waiver, informing him that the waiver limited his appeal
rights; and Jackson indicated that he understood the sentence appeal waiver.
Moreover, Jackson also confirmed that he had discussed the plea agreement with
his lawyer and that he intended to plead guilty based on the more limited waiver in
the plea agreement.
Jackson simply has not shown plain error that affected his substantial rights.
*
That Jackson’s plea was free from coercion, that he understood the nature of the charge
against him, and that he was advised of the consequences of his guilty plea, other than the appeal
waiver provision, is undisputed.
4
He does not demonstrate a reasonable probability that, but for the district court’s
technically inaccurate explanation of the sentence appeal waiver, he would not
have entered the plea. And such a demonstration is required of 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. United States v. Dominguez Benitez,
124 S.Ct. 2333, 2340 (2004); Gordon v. United States, 518 F.3d 1291, 1298 (11th
Cir. 2008) (a violation of Rule 11 prejudices a defendant only when it results in a
total or almost total failure to address one of the core concerns).
Even if Jackson did not knowingly and voluntarily agree to the sentence
appeal waiver, the proper remedy would be to sever the appeal waiver provision
and leave the plea agreement, including Jackson’s guilty plea, intact. See United
States v. Bushert, 997 F.2d 1343, 1353 (11th Cir. 1993). But Jackson has raised no
substantive challenge to his sentence or to the enforceability of the waiver on
appeal; instead, he challenges only the validity of the sentence appeal waiver as a
means to vacate his entire plea.
AFFIRMED.
5