IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60730
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN R. FLETCHER, also known as “JR,”
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
(2:00-CR-121-1)
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January 21, 2003
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Defendant-Appellant John R. Fletcher appeals from his
conviction on four counts of using a communication facility in
committing a drug offense. Fletcher contends, for the first time
on appeal, that the district court violated FED. R. CRIM. P. 11 by
failing to explain personally and in open court the maximum penalty
he faced and that the Sentencing Guidelines applied to his case.
He argues that the district court allowed him to plead guilty while
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
harboring the mistaken belief that he could receive no more than
four years’ imprisonment.
When an appellant allows an error in a guilty-plea colloquy to
pass without objection, we review for plain error only. United
States v. Vonn, 535 U.S. 55, 122 S. Ct. 1043, 1046 (2002). To
establish plain error, an appellant must show that: (1) there is
an error (2) which is clear or obvious and (3) such error affects
his substantial rights. United States v. Calverley, 37 F.3d 160,
162-64 (5th Cir. 1994)(en banc)(citing United States v. Olano, 507
U.S. 725, 731-37 (1993)). If these factors are established, the
decision to correct the forfeited error is within the sound
discretion of the court, and the court will not exercise that
discretion unless the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Olano,
507 U.S. at 735-36.
Rule 11 does not require district courts to ascertain that
defendants know that multiple-count sentences may be imposed
consecutively. See FED. R. CRIM. P. 11(c)(1). Neither must a
district court inform a defendant that a sentence may be imposed
consecutively to any sentence that is already being served. United
States v. Saldana, 505 F.2d 628 (5th Cir. 1974). Fletcher has not
shown a clear or obvious error.
The district court did violate Rule 11 by failing to ascertain
whether Fletcher understood that the Sentencing Guidelines would
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apply to his case. See FED. R. CRIM. P. 11(c)(1). The district
court’s error did not, however, affect Fletcher’s substantial
rights, as Fletcher has not shown any likelihood that he would have
pleaded not guilty and proceeded to trial had he been so advised.
See United States v. Vasquez-Bernal, 197 F.3d 169, 171 (5th Cir.
1999), cert. denied, 528 U.S. 1130 (2000).
AFFIRMED.
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