PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 94-6984
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FILED
U.S. COURT OF APPEALS
D. C. Docket No. CR-94-92-N ELEVENTH CIRCUIT
1/06/99
THOMAS K. KAHN
CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICK LAMAR HUMPHREY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
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(January 6, 1999)
Before EDMONDSON and BIRCH, Circuit Judges, and MORAN*, Senior
District Judge.
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* Honorable James B. Moran, Senior U.S. District Judge for the
Northern District of Illinois, sitting by designation.
EDMONDSON, Circuit Judge:
Appellant, Patrick L. Humphrey, argues on appe
district court failed to meet the requirements of
when accepting his guilty plea. We see no plain e
affirm.
Background
Humphrey was charged with one count of posse
base with intent to distribute, in violation of 2
and one count of using and carrying a firearm
trafficking crime, in violation of 18 U.S.C. § 924(
pled guilty to both counts.
2
Before accepting Humphrey’s plea, the district
Humphrey in the dialogue required by Fed. R. Crim.
attorney was present. The district court judge in
Humphrey of the minimum and maximum penal
count but did not inform Humphrey that the sent
1
served consecutively.
1
The following exchange took place at the
Rule 11 proceeding:
The Court: Do you understand that the
maximum possible penalty under Count
one is a fine of not more than two
million dollars, or twice the gross loss to
a victim or twice the gross gain to a
defendant, whichever is greater; a term
of imprisonment of not less than five
years and not more than forty years, or
both fine and imprisonment; a period of
3
not less than four years of supervised
release. The Court would also be required
to require you to pay an assessment fee
of fifty dollars on this Count. If there is
any victim, the Court could order [you] to
make restitution to any victim.
Under Count two you could be assessed
a fine of not more than two hundred
and fifty thousand dollars or twice the
gross loss to the victim or twice the gross
gain to the defendant, whichever is
greater. There is a mandatory five-year
sentence as to Count two. You could be
fined and have the mandatory sentence
imposed. And there is a period of not
more than three years of supervised
release for this offense. The Court could
require you to make restitution to a
victim. The Court would also have to
impose a fifty-dollar assessment as to
this second count.
Now, both of these counts are what
4
Later, Humphrey was sentenced to five years
imprisonment on each count, to be served conse
appeal, Humphrey argues that the Rule 11 proceedin
because the district court judge did not tell him th
are known as guidelines cases. Have you
had any explanation as to what a
guidelines case means.
(Discussion between defendant and
defense attorney).
Defendant: Yes, sir.
. . . .
The Court: Do you understand all of
these maximum possible penalties?
Defendant: Yes.
5
sentences had to be served consecutively. Humphr
this argument to the district court.
Discussion
We have written that a Rule 11 proceeding mus
things. First, the proceeding must ensure the guil
of coercion. Second, the proceeding must make su
defendant understands the charges against him.
proceeding must confirm that the defendant is a
consequences of his guilty plea. See United States
F.2d 665, 668 (11th Cir. 1992).
6
Humphrey says his Rule 11 hearing did not ensur
aware of the consequences of his guilty plea becau
court judge did not say that the sentence for the
must be served consecutively to the sentence for
possession count. Humphrey relies on our decisio
States v. Siegel, 102 F.3d 477 (11th Cir. 1996). Siegel
court must advise a defendant of the maximum
“mandatory nature” of the penalties associated
to satisfy Rule 11. 102 F.3d at 482. Humphrey’s cla
failing to tell him about the consecutive nature
sentences -- the district court violated Rule 11 beca
7
told the mandatory nature of the penalties asso
guilty pleas.
The government argues that the requirement
were met by informing Humphrey of the minim
maximum penalties for each count. Nothing in
according to the government, explicitly requires
defendant about the consecutive nature of multi
Other circuits appear to agree -- in varying degr
2
government’s general position. Also, a Fifth C
2
See, e.g., United States v. Burney, 75 F.3d
442, 445 (8th Cir. 1996) (no requirement
to tell defendant about mandatory
consecutive sentences); United States v.
Ospina, 18 F.3d 1332, 1334 (6th Cir. 1994)
8
that is one of our precedents suggests -- but does
(same); see also Faulisi v. Daggett, 527
F.2d 305, 309 (7th Cir. 1975) (no
requirement to tell defendant that
federal sentence may, at district court’s
discretion, run consecutively to state
sentence); Wall v. United States, 500 F.2d
38, 39 (10th Cir. 1974) (no requirement to
tell defendant about possible consecutive
sentences if sentences are within
maximum sentence stated at Rule 11
hearing); Paradiso v. United States, 482
F.2d 409, 415 (3rd Cir. 1973) (no
requirement to inform defendant that
multiple sentences might, at discretion
of district court, be served consecutively);
United States v. Vermeulen, 436 F.2d 72,
75 (2d Cir. 1970) (same). But see United
States v. Neely, 38 F.3d 458, 460 (9th Cir.
1993) (defendant must be told that his
federal sentence must run consecutively
to state sentence).
9
the result advocated by the government. See Uni
Saldana, 505 F.2d 628, 628 (5th Cir. 1974) (no vi
when district court fails to tell defendant that s
to be imposed would be consecutive to sentence he
serving). The government also points out that H
to object to later statements, informing Humphr
would face consecutive sentences, made in the pr
investigation report and at the sentencing hea
The appropriate standard of review, given Hu
failure to object in the district court to the cons
sentences, is plain error. See Fed. R. Crim. P. 52(b
v. Quinones, 97 F.3d 473, 475 (11th Cir. 1996). “No p
10
principle is more familiar . . . than that a const
or a right of any other sort, may be forfeited in
well as civil cases by the failure to make timely a
right before a tribunal having jurisdiction to de
United States v. Olano, 113 S. Ct. 1770, 1776 (1993) (i
quotation marks and citations omitted). An exc
rule is plain error review, codified in Fed. R. Crim
our power to review for plain error is “limited”
“circumscribed.” Olano, 113 S. Ct. at 1776.
Four requirements must be met before we can
3
district court for plain error. One of the four r
3
First, there must be an error. Second,
11
that the error must be “plain.” Id. at 1777. A pl
an error that is “obvious” and is “clear under cur
No Supreme Court decision squarely supports
claim. And other circuits -- if we read the case la
favorably to Humphrey -- are split on Humphrey’s
4
similar arguments. Also, we have never resolve
the error must be plain. Third, the error
must affect substantial rights of the
defendant. Fourth, the error must
seriously affect the fairness, integrity,
or public reputation of a judicial
proceeding. Olano, 113 S. Ct. at 1776. We
address only the second requirement in
today’s opinion.
4
See supra note 2.
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of these circumstances point to no plain error
5
In Siegel, the district court abused its discre
5
The Court, in Olano, specifically declined
to address “the special case where the
error was unclear at the time of trial
but becomes clear on appeal because the
applicable law has been clarified.” 113 S. Ct.
at 1777. After Olano, we have
considered decisions made between the
alleged error of the district court and the
appeal when deciding if an error is
plain. See United States v. Antonietti, 86
F.3d 206, 208-09 (11th Cir. 1995) (sentence
based on definition of “marijuana
seedling,” when definition changed in
defendant’s favor after sentencing, is
plain error) (dicta or unclear
alternative holding); United States v.
Walker, 59 F.3d 1196, 1198 (11th Cir. 1995)
(conviction based on a statute later
ruled unconstitutional after defendant’s
13
failing to inform the defendant, among other th
sentences would have to be served consecutively.
however, treated all the facts before it as mater
6
decision. At most, Siegel decided that -- when a di
trial is plain error). We will consider
Siegel.
6
The Siegel court took into account all of
these facts:
It is undisputed that neither
the district court nor the
government informed Siegel
during the Rule 11 proceedings of the
twenty-year maximum sentences
that he could receive on Counts
Four, Five, and Six. Moreover, it is
uncontroverted that neither the
district court nor the government
advised Siegel that he would be
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does not inform the defendant of the maximum
associated with three counts, of the mandatory m
sentences associated with two counts, and of the
nature of a sentence associated with one count
required to serve a five-year
mandatory minimum prison
sentence if he pled guilty to the
offense charged in Count Seven.
Further it is undisputed that the
district court failed to advise
Siegel that if he pled guilty to Count
Eight he would be required to serve
a twenty-year mandatory
minimum sentence, to be served
consecutively to the sentences
imposed on Counts One through
Seven.
Siegel, 102 F.3d at 482.
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collectively amount to reversible error. Siegel di
as Humphrey insists it did decide -- that each one
standing alone, would justify reversing the distr
more specific, the Siegel court did not decide that
like those in the present case (involving manda
consecutive sentences only) amounted to revers
Because the Siegel case is not materially similar
case, no plain error based on Siegel is present in
Without precedent directly resolving Humphre
claim, we conclude the district court’s alleged err
“obvious” or “clear under current law.” See Unite
Thompson, 82 F.3d 849, 856 (9th Cir. 1996) (“Because
16
split, the lack of controlling authority, and the fa
at least some room for doubt about the outcome o
cannot brand the court’s failure to exclude the ev
error’ ”) (footnote omitted). The error in this ca
an error), therefore, is not plain. See Olano, 113 S
Without a “plain” error, we lack authority to reverse the district
court. See id. We express no view as to whether the district
court committed an error other than a plain error.
AFFIRMED.
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