[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 03-13614 ELEVENTH CIRCUIT
SEPTEMBER 6, 2005
Non-Argument Calendar
THOMAS K. KAHN
-------------------------------------------- CLERK
D.C. Docket No. 03-10009-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLTON STEELE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 6, 2005)
Before EDMONDSON, Chief Judge, TJOFLAT and PRYOR, Circuit Judges.
PER CURIAM:
Defendant-Appellant Charlton Steele cites errors and omissions in the Rule
11 proceedings at which he pled guilty to drug trafficking conspiracy charges, and
he requests that we remand to allow him the opportunity to plead anew. Because
we conclude that those errors, although plain, made no difference in the outcome
of the Rule 11 proceedings, no reversible plain error has been shown.
The facts of the underlying offense are uncontested. Two female co-
defendants exited a cruise ship in Key West, Florida, and were found to have 31
kilograms of cocaine strapped to their bodies. When questioned, the co-
defendants identified Defendant as the person on board the cruise ship who had
provided them the cocaine. Agents boarded the cruise ship and took Defendant
into custody. Defendant was arrested and later indicted by the grand jury on one
count of conspiracy to possess with intent to distribute five or more kilograms of
cocaine, 21 U.S.C. §§ 841 and 846; and one count of possession with intent to
distribute five or more kilograms of cocaine, 21 U.S.C. § 841.
Defendant cooperated with the government and also entered into a plea
agreement. In the first of what proved to be a series of errors about the charges
against him, the plea agreement provided that Defendant would plead guilty to
Count 1 of his indictment -- conspiring to import cocaine, in violation of 21
U.S.C. §§ 963 and 960(b)(1) -- and the remaining three counts would be dismissed
at sentencing. That the indictment charged no importation violation, and that the
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indictment contained two -- not four -- counts, went unnoticed by the prosecution
and the defense.
At the plea colloquy, the district court established that Defendant had
received a copy of the indictment and had discussed the charges fully with his
lawyer. The Defendant also acknowledged that he had read and discussed the plea
agreement with his lawyer. The government provided a factual basis for the
offense that included the facts we have recited. Also, agents found $1,300 on
Defendant at the time of his arrest that had been given to him by one of his drug
contacts. Post-arrest, Defendant said that he was on the ship for the purpose of
delivering the cocaine to the co-defendants and that it was Defendant who told the
co-defendants how to deliver the cocaine and strapped it on their bodies.
Defendant told the court that the evidence presented by the government was
correct.
The court did not read the indictment to Defendant, did not explain the
elements of the offense to which he was pleading, or otherwise discuss the charge
with him at the Rule 11 proceedings. The judge -- we suppose misled by the
erroneous mention of importation in the plea agreement -- asked Defendant how
he wished to plead to Count 1 of the indictment, and the judge identified that
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charge as an importation offense in violation of 21 U.S.C. § 963. Defendant pled
guilty; the court accepted his plea.
The misidentification of the count to which Defendant pled guilty recurred
in the presentence investigation report (“PSI”). The introductory section stated
that Defendant had pled guilty to an importation count, although it correctly stated
the code section violated as 21 U.S.C. § 846. Twice more the PSI referenced the
violation as an importation crime: once more it cited 21 U.S.C. § 846, and one
time it cited 21 U.S.C. §§ 963 and 960(b)(1).
Defendant at sentencing raised the “typographical error” in the plea
agreement. Defendant told the court that the plea agreement should have referred
to 21 U.S.C. §§ 841 and 846, instead of 21 U.S.C. §§ 960 and 963. Defendant
called the error to the court’s attention only because it was picked up in the PSI.
Defendant expressed no confusion about what he had pled guilty to and expressed
no desire to withdraw his plea. The court said that it would have the probation
officer correct the PSI. When, however, the written judgment issued, it too was
internally inconsistent and repeated an erroneous importation reference. The
judgment provided that Defendant was convicted of conspiracy to import cocaine
in violation of 21 U.S.C. §§ 841 and 846.
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Defendant filed a motion in the district court, pursuant to Fed.R.Crim.P. 36,
to correct the “clerical mistake” in the judgment and to confirm Defendant’s
conviction and sentence. The motion stated that “the judgment incorrectly
state[d] that the nature of the offense for which Mr. Steel is convicted was
‘conspiracy to import’...” (Emphasis in original). In the motion, counsel opined
that he could identify no way that the error adversely affected Defendant; but
counsel sought correction so that no problem would arise when he submitted his
motion to withdraw pursuant to Anders v. California, 87 S.Ct. 1396 (1967), in this
Court. Again Defendant voiced no dissatisfaction with his plea of guilty to the §§
841 and 846 conspiracy to traffick offense. The government agreed that the
clerical error should be corrected. The district court issued an amended order
correcting the order of judgment and accurately described the offense committed
and the code sections violated.
This Court denied Defendant’s lawyer’s motion to withdraw and directed
briefing on the issue of whether the district court plea hearing satisfied the second
core concern under Fed.R.Crim.P. 11: the defendant’s understanding of the nature
of the charge against him. A merits brief was filed on behalf of Defendant in
which Defendant recited the errors we have outlined and argued that the district
court’s failure to assure that Defendant understood the nature and the elements of
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the charge of conspiracy to possess cocaine -- the actual charge in Count 1 of the
indictment to which Defendant pled guilty -- required that Defendant be given the
opportunity to withdraw his plea and to plead anew.
This Court has identified three core concerns when reviewing Rule 11
proceedings: whether (1) the guilty plea was voluntary; (2) the defendant
understood the nature of the charges against him; and (3) the defendant understood
the consequences of his plea. See, e.g., United States v. Lejarde-Rada, 319 F.3d
1288, 1289 (11th Cir. 2003) (quoting United States v. Mosley, 173 F.3d 1318,
1322 (11th Cir. 1999). When no objection is made to a Rule 11 violation in the
district court, plain error review applies on appeal. United States v. Vonn, 122
S.Ct. 1043, 1046 (2002).
Under plain error review, a defendant must show (1) “error,” (2) that is
“plain,” and (3) that “affect[s] substantial rights.” See United States v. Olano, 113
S.Ct. 1770, 1777-78 (1993). Only after error that is plain and affects substantial
rights has been shown, may an appellate court exercise its discretion to notice the
forfeited error and, then, only if the error “seriously affect[s] the fairness, integrity,
or public reputation of judicial proceedings.” Johnson v. United States, 117 S.Ct.
1544, 1549 (1997) (internal quotations and citations omitted). And, “[u]nder
plain-error review, the silent defendant has the burden ‘to show the error plain,
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prejudicial, and disreputable to the judicial system.’” United States v. Monroe, 353
F.3d 1346, 1349-50 (11th Cir. 2003) (quoting Vonn, 122 S.Ct. at 1050).
Defendant has shown “error” that is “plain:” the district court failed
adequately to address the nature of the charge to which Defendant was pleading.
The district court and the plea agreement misstated or cited inconsistently the
Count 1 offense.
This Court traditionally has assumed substantial rights were violated and
reversible plain error shown when the district court failed entirely to address a
core Rule 11 concern. See, e.g., United States v. Telemaque, 244 F.3d 1247, 1249
(11th Cir. 2001) (“Any failure to address one of Rule 11(c)’s three ‘core concerns,’
of which informing the defendant of the nature of the offense is one, is prejudicial
plain error.)”. And we have vacated convictions and remanded for further
proceedings when a core concern was not addressed adequately. See id.; United
States v. Quinones, 97 F.3d 473, 475 (11th Cir. 1996). Based on our existing
caselaw, the government initially conceded that Defendant had met his burden of
demonstrating plain error: the Rule 11 colloquy, combined with errors in the plea
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agreement, failed to assure that Defendant understood the nature of the charges to
which he was pleading.1
After briefing on this appeal was complete, the Supreme Court decided
United States v. Dominguez Benitez, 124 S.Ct. 2333 (2004). In Dominguez
Benitez, the Supreme Court wrote these words:
We hold, therefore, that a defendant who seeks reversal
of his conviction after a guilty plea, on the ground that
the district court committed plain error under Rule11,
must show a reasonable probability that, but for the
error, he would not have entered the plea. 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. at 2340 (internal quotation and citation omitted). The Supreme Court
explained that the reasonable-probability standard would take into consideration
record evidence that shed light on the relative significance of the Rule 11 error on
the defendant’s plea decision: later protests by the defendant (for example, at
sentencing), the overall strength of the government’s case, and possible defenses
that appear from the record. Id. at 2341. The Supreme Court disavowed an intent
1
The government noted that the Supreme Court had granted certiorari in United States v.
Dominguez Benitez, 124 S.Ct. 921 (2003), on the issue of whether a defendant, to establish
reversible plain error, must show that he would not have pleaded guilty if the Rule 11 violation of
which he complains had not occurred.
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to second-guess a defendant’s actual decision, but it also recognized the obvious:
when the record made for a guilty plea and sentencing reveals strong evidence and
no apparent defenses, “one can fairly ask a defendant seeking to withdraw his plea
what he might ever have thought he could gain by going to trial.” Id.
The record here does not persuade us that a reasonable probability exists
that the district court’s failure to identify correctly and consistently the nature of
the charge against Defendant (albeit unfortunate and regrettable) actually impacted
on Defendant’s plea decision. The facts presented by the government at the plea
colloquy would have permitted a conspiracy-to-possess-with-intent-to-distribute
conviction as readily as they would have permitted a conspiracy-to-import
conviction. No defenses are apparent on the face of the record or mentioned in the
appellate briefs. At sentencing, in Defendant’s presence, Defendant’s lawyer
clarified that Count 1 of the indictment -- the count to which Defendant pled guilty
-- charged a violation of 21 U.S.C. §§ 841 and 846; reference to code sections 963
and 960(b)(1) in the plea agreement and PSI were characterized as incorrect
“typographical” errors. Defendant testified at some length at the sentencing
proceedings but expressed no confusion, unhappiness or desire to disavow his
plea. The earlier errors had no impact on sentencing, and the judgment of
conviction has been corrected to reflect the crime for which Defendant was
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indicted and for which, we conclude, the record shows Defendant intended to
plead.
Even at this stage of the proceedings, nothing in the record suggests that
Defendant -- who received a two level safety valve reduction, a two level
adjustment for acceptance of responsibility, and a one level reduction because he
cooperated with the government and timely notified the government of his intent
to plead guilty -- perceives himself to be prejudiced by the entry of his guilty plea.
Nothing indicates a desire to go to trial. Defendant’s lawyer, at our behest, argues
only that Defendant should be given the opportunity to plea anew.
We do not say that the mistakes attending the nature of the offense in the
present case were trifling. Nor do we suggest that district courts are not obligated
to assure that a defendant entering a plea understands the offense with which he is
charged. We do, however, conclude that this case is distinguishable from other
Rule 11 cases where we have reversed based on a wholesale failure to satisfy the
nature of the offense core concern.2 Given Defendant’s silence when the mistakes
2
As the Monroe court noted, in the plain error cases where we have concluded that a Rule 11 error
warrants relief, the violations resulted in “a total or almost total failure to address a Rule 11 core
concern.” 353 F.3d at 1355. Because (i) the district court did assure in the plea colloquy that the
charges were discussed fully by Defendant and his counsel; and (ii) the discussion at sentencing
clarified the nature of the offense, this case is no wholesale failure case. We leave to another day
a fuller exploration of the impact of Dominguez-Benitez’s reasonable probability standard on our
Rule 11 core-concern-plain-error jurisprudence.
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about the offense of conviction were clarified, coupled with the teaching of
Dominguez Benito, we are unconvinced that a reasonable probability exists that
the district court’s errors and omissions made a difference to Defendant’s plea
decision. The requirements for plain error relief are not satisfied3.
AFFIRMED.
3
The Dominguez Benitez decision allows, although in dicta, that the reasonable-probability test
would not save a conviction obtained by guilty plea if the record contained no evidence that the
defendant knew of the rights he was waiving. Because we conclude that this is not a “no evidence”
case, we need not explore the contours of this potential exception to the rule announced in
Dominquez Benitez.
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