[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12133 ELEVENTH CIRCUIT
MARCH 25, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-80073-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANK JACKSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 25, 2010)
Before BARKETT, HULL and FAY, Circuit Judges.
PER CURIAM:
Frank Jackson appeals from his convictions and sentences for conspiracy to
possess with intent to distribute at least five kilograms of cocaine, in violation of
21 U.S.C. § 846 and 18 U.S.C. § 2, and brandishing a firearm in connection with a
drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and 2. On
appeal, he argues that his guilty plea was invalid because the magistrate judge
failed to inform him, in accordance with Fed.R.Crim.P. 11(b)(1)(B), that he had the
right to plead not guilty and persist in that plea. He contends that this alleged error
warrants the reversal of his convictions.
In addition, Jackson seeks to raise two arguments regarding the district
court’s calculation of his advisory guideline range. Specifically, he argues that the
district court erred by increasing his offense level under U.S.S.G. §§ 3A1.2(c)(1)
and 3C1.2. The government responds that the appeal-waiver provision in
Jackson’s plea agreement precludes him from raising these arguments on appeal.
For the reasons set forth below, we affirm.
I.
In a superseding indictment, a federal grand jury charged Jackson and his
codefendants, Anthony Jackson and Michael Singletary, with the following
offenses: (1) conspiracy to possess with intent to distribute at least five kilograms
of cocaine, in violation of 21 U.S.C. § 846 (“Count 1”); (2) attempt to possess with
2
intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 2 (“Count 2”); and (3) brandishing a firearm during
and in relation to the drug trafficking crimes set forth in Counts 1 and 2, in
violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (“Count 3”). Jackson and the
government subsequently entered into a written plea agreement, whereby Jackson
agreed to plead guilty to Counts 1 and 3 of the indictment, and the government
agreed to move to dismiss Count 2.
The plea agreement also included a sentence-appeal waiver. This waiver
provided, in relevant part, that:
[I]n exchange for the undertakings made by the United States in this
plea agreement, the defendant hereby waives all rights conferred by
Section 3742 to appeal any sentence imposed . . . or to appeal the
manner in which the sentence was imposed, unless the sentence
exceeds the maximum permitted by statute or is the result of an
upward departure and/or variance from the guideline range that the
court establishes at sentencing. . . .
The agreement was signed by Jackson, his attorney, and the government.
At the guilty plea hearing, Jackson, who was represented by counsel, was
placed under oath. The magistrate judge stated, “Now, even though that’s what
we’re here to do this afternoon, is to take a guilty plea[,] I want to make sure that
you understand that you are under no obligation whatsoever to plead guilty.”
Jackson confirmed that he understood this. The magistrate continued,
3
And if you decide that you don’t want to plead guilty, anytime during
this plea hearing, just raise your hand and say I changed my mind. I
want a trial. I don’t want to plead guilty. And, nothing that you have
told me or the government here this afternoon can be used against you
if you decided to go to trial instead of pleading guilty, do you
understand that, sir?
Jackson averred that he understood.
In response to questioning by the court, Jackson stated that he had signed the
plea agreement and had “read every word [of it]” before he signed it. The
magistrate then informed Jackson of his right to have a jury trial, as well as its
attendant rights, including his rights to: (1) enjoy a presumption of innocence
unless proven guilty beyond a reasonable doubt; (2) be represented by an attorney
even if he could not afford an attorney; (3) confront and cross-examine the
witnesses against him; (4) call witnesses in his defense and have the court issue
subpoenas for such testimony; and (5) choose whether to testify in his own
defense. During the course of explaining these rights to Jackson, the court stated:
You are under no obligation whatsoever to come into this Court to
plead guilty. You have the absolute right to say I am not guilty. I
want a jury trial, and I want twelve people from the community to fill
up these chairs to sit as my jury. You have the right to have that jury
listen to all the evidence and to decide the verdict; do you understand
that?
Jackson stated that he understood these rights. He also stated that, in light of these
rights, he still desired to plead guilty.
4
The magistrate reviewed the terms of the plea agreement with Jackson,
including the elements of the offenses with which he was charged and the statutory
minimum and mandatory sentences applicable to those offenses. In addition, the
magistrate specifically addressed the sentencing-appeal waiver, reading it verbatim
in open court. The magistrate explained to Jackson that this provision meant that
he could not appeal his sentence unless it exceeded the statutory maximum, or
constituted an upward departure from his guideline range. The magistrate further
explained that Jackson would be released from this provision only if the
government appealed from his sentence. Jackson stated that he understood the
meaning of the appeal-waiver provision. The magistrate then asked Jackson if
anyone had made a promise to him in exchange for his guilty plea, or if anyone had
threatened or coerced him into pleading guilty, and Jackson responded that no
promises or threats had been made in connection with his plea.
The government then made a factual proffer of the basis for Jackson’s
offenses. Jackson admitted that these facts were true, and stated that he pled guilty
freely and voluntarily. The magistrate found that Jackson’s plea was knowing and
voluntary, and accepted his guilty plea. Throughout the hearing, Jackson did not
raise any objections to the plea colloquy or indicate that he did not wish to plead
guilty. Jackson did not file any written objections concerning his plea colloquy.
5
In preparing Jackson’s pre-sentence investigation report (“PSI”), the
probation officer found that, pursuant to U.S.S.G. § 2D1.1(a)(3), Jackson’s base
offense level was 32. The officer increased Jackson’s offense level by six levels
under U.S.S.G. § 3A1.2(c)(1), because a person for whose conduct Jackson was
responsible assaulted a police officer in a manner creating a substantial risk of
serious bodily injury. The officer increased Jackson’s offense level by another two
levels under U.S.S.G. § 3B1.1(c) because he acted as an organizer, leader,
manager, or supervisor of criminal activity.
In addition, the probation officer increased Jackson’s offense level by
another two levels under U.S.S.G. § 3C1.2 because he recklessly created a serious
risk of bodily injury to another person while he was fleeing from a law
enforcement officer. Finally, the probation officer reduced Jackson’s offense level
by three levels under U.S.S.G. § 3E1.1(a) and (b) for his acceptance of
responsibility. Accordingly, the officer determined that Jackson’s total offense
level was 39. Based on a total offense level of 39 and Jackson’s criminal history
category of III, the officer set his guideline range at 324 to 405 months’
imprisonment as to Count 1. The officer noted that, as to Count 3, Jackson was
required to serve a statutory mandatory minimum term of seven years’
imprisonment, to run consecutively to any other term of imprisonment imposed.
6
At the sentencing hearing, Jackson objected to the six-level increase under
§ 3A1.2, and also objected to the two-level increase to his offense level under
§ 3C1.2. After hearing testimony from three police officers involved in Jackson’s
investigation, as well as Jackson’s testimony, the district court overruled his
objections.
The court and the parties’ agreed that, based on Jackson’s offense level of 39
and criminal history category of III, his guideline range as to Count 1 was 324 to
405 months’ imprisonment. The court and the parties further agreed that Jackson
was required to serve a statutory mandatory consecutive sentence of least 84
months’ imprisonment as to Count 3. After considering the sentencing factors set
forth in 18 U.S.C. § 3553(a), the court granted Jackson a downward variance,
sentencing him to 216 months’ imprisonment as to Count 1 and a consecutive term
of 84 months’ imprisonment as to Count 3, for a total term of 300 months’
imprisonment. The court asked the parties if there were any objections to its
findings of fact and conclusions of law, and Jackson reasserted his objection to the
six-level increase under § 3A1.2(c). During the sentencing hearing, Jackson did
not make any statement indicating that he had an objection concerning his plea
colloquy, or that he wished to withdraw his guilty plea.
II.
7
Because Jackson did not raise any objection regarding his guilty plea before
the district court, we review his Rule 11 argument for plain error. See United
States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005). “To establish plain
error, a defendant must show there is (1) error, (2) that is plain, and (3) that affects
substantial rights.” Id. If these conditions are satisfied we may exercise our
discretion to correct the error if the error “seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings.” Id. (quotation omitted). When
applying plain error review in the plea colloquy context, we “may consult 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) (quotation
omitted).
Under Fed.R.Crim.P. 11, before a court can accept a guilty plea, the court
must inform a defendant of, and make sure a defendant understands, certain
matters. See Fed.R.Crim.P. 11(b)(1)(A)-(N). This includes an obligation to inform
the defendant that he has “the right to plead not guilty, or having already so
pleaded, to persist in that plea.” Fed.R.Crim.P. 11(b)(1)(B). In general, “Rule 11
imposes upon a district court the obligation and responsibility to 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). When
8
accepting a guilty plea, a court must address three core concerns underlying Rule
11: “(1) the guilty plea must be free from coercion; (2) the defendant must
understand the nature of the charges; and (3) the defendant must know and
understand the consequences of his guilty plea.” United States v. Jones, 143 F.3d
1417, 1418-19 (11th Cir. 1998) (quotation omitted). We have “upheld plea
colloquies that fail to address an item expressly required by Rule 11 so long as the
overall plea colloquy adequately addresses these three core concerns.” Monroe,
353 F.3d at 1354. In addition,“[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 entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83, 124
S.Ct. 2333, 2340, 159 L.Ed.2d 157 (2004).
Here, Jackson cannot demonstrate that the court committed error, let alone
plain error, in conducting his guilty-plea hearing. The plea colloquy transcript
reflects that the magistrate effectively informed Jackson of his right to persist in a
plea of not guilty. Specifically, the court made the following statements: (1) “I
want to make sure that you understand that you are under no obligation whatsoever
to plead guilty”; (2) “if you decide that you don’t want to plead guilty anytime
during this plea hearing, just raise your hand and say I changed my mind”; and
9
(3) “You are under no obligation whatsoever to come into this Court and plead
guilty. You have the absolute right to say I am not guilty.” Jackson cites to certain
pages of the plea-colloquy transcript in support of his assertion that the magistrate
failed to inform him that he had the right to persist in a plea of not guilty. These
same pages of the transcript, however, demonstrate that the court stated, “You have
the absolute right to say I am not guilty.” Moreover, the magistrate went above
and beyond Rule 11’s minimum requirements by inviting Jackson to raise his hand
at any time if he wished to persist in his plea of not guilty, and informing him that,
in the event that he decided that he did not want to plead guilty, nothing that he
said at the plea colloquy could be used against him. Thus, the court not only
informed Jackson of his right to persist in a plea of not guilty, it also ensured that
he would feel comfortable in exercising this right.
To the extent that Jackson’s argument could be construed as one that the
district court erred by failing to recite, verbatim, the language used in
Fed.R.Crim.P. 11(b)(1)(B), his argument lacks merit. Jackson fails to point to
precedent indicating that a district court or magistrate is required to engage in a
verbatim, mechanical recitation of the matters set forth in Rule 11. Rather, the
court is required to address Rule 11’s core concerns—that the defendant’s plea is
free from coercion, and that he understand the nature of the charges against him
10
and the direct consequences of his guilty plea. Here, the magistrate addressed
these core concerns by asking Jackson if any promises or threats had been made in
connection with his plea, reviewing the charges against him, and informing him
that he was giving up his right to a jury trial, along with its attendant rights.
Finally, even if Jackson could demonstrate that the magistrate erred by
failing to comply with Rule 11, he still would not be able to satisfy the plain-error
standard of review because he makes no attempt to demonstrate that, but for the
magistrate’s alleged error, he would not have pled guilty.
III.
We review de novo issues concerning the validity of an appeal waiver
provision. United States v. Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir. 1997).
A sentence-appeal waiver must be entered into knowingly and voluntarily and
“will be enforced if the government demonstrates either: (1) the district court
specifically questioned the defendant about the waiver during the plea colloquy, or
(2) the record clearly shows that the defendant otherwise understood the full
significance of the waiver.” Id. A sentence-appeal waiver is a direct consequence
of a guilty plea, encompassed within a core concern of Rule 11—that the defendant
be aware of the direct consequences of his guilty plea. United States v. Bushert,
997 F.2d 1343, 1351 (11th Cir. 1993). A sentence-appeal waiver includes the
11
waiver of the right to appeal difficult or debatable legal issues or even blatant error.
United States v. Howle, 166 F.3d 1166, 1169 (11th Cir. 1999).
Because Jackson’s appeal waiver was knowing and voluntary, we do not
review the sentencing arguments he raises in his brief on appeal. As an initial
matter, Jackson’s 300-month sentence did not fall within the exceptions to the
appeal-waiver provision, because it did not constitute an upward variance from his
guideline range, and did not exceed the statutory maximum sentence. In addition,
the appeal-waiver provision is enforceable because, during the plea colloquy, the
magistrate specifically questioned Jackson about the provision. The magistrate
read the provision in open court, and explained the meaning of the provision to
Jackson, who confirmed that he understood its significance. Because the appeal-
waiver provision is enforceable, Jackson is precluded from raising his sentencing
arguments on appeal, regardless of whether they have merit.
AFFIRMED.
12