[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                               No. 09-15886                 ELEVENTH CIRCUIT
                                                               AUGUST 18, 2010
                           Non-Argument Calendar
                                                                 JOHN LEY
                         ________________________
                                                                  CLERK

                 D. C. Docket No. 08-00014-CR-1-SPM-AK-2

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

BRANDON TERELL STEVENSON,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        _________________________

                               (August 18, 2010)

Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

     Brandon Stevenson appeals his conviction for conspiracy to distribute and to
possess with intent to distribute more than five kilograms of cocaine and more than

fifty grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and his resulting

sentence of life imprisonment followed by ten years of supervised release. After

review, we affirm.

                                             I.

       On appeal, Stevenson argues that he did not knowingly and voluntarily plead

guilty because he was not properly advised that he would be sentenced to a

mandatory life sentence, and thus he did not understand the consequences of his

plea. In essence, he argues that the failure to ensure that he understood the

consequences of his plea constituted a violation of Rule 11 of the Federal Rules of

Criminal Procedure. He requests that his conviction be vacated and that he be

allowed to withdraw his plea.

       Rule 11 of the Federal Rules of Criminal Procedure covers the proper

procedure for considering and accepting a guilty plea. We review Rule 11

objections raised for the first time on appeal for plain error. United States v.

Moriarty, 

, 1019 (11th Cir. 2005). Under plain error review, the

defendant must establish: (1) an error, (2) that is plain, and (3) that affects

substantial rights. 

three factors are met, we may then exercise our

discretion and correct the error if it “seriously affect[s] the fairness, integrity, or



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public reputation of the judicial proceedings.” 

marks

omitted) (alteration in original). When determining whether a Rule 11 error in the

plea colloquy affects a defendant’s substantial rights, the appellate court may refer

to the entire record. United States v. Vonn, 

, 74-75, 

,

1054-55 (2002).

      “A guilty plea involves the waiver of a number of a defendant’s

constitutional rights, and must therefore be made knowingly and voluntarily to

satisfy the requirements of due process.” 

. Before

accepting a guilty plea, a judge must address the core concerns contained in Rule

11(b): (1) that the guilty plea is voluntary; (2) that the defendant understands the

nature of the charges; and (3) that the defendant is aware of the consequences of

his plea. 

the district court to, inter alia, inform the defendant of

“any maximum possible penalty” and “any mandatory minimum penalty.” Fed. R.

Crim. P. 11(b)(1)(H)-(I).

      Here, Stevenson cannot demonstrate that the district court committed plain

error because the record reflects that Stevenson knew he was subject to a

mandatory life sentence. Before Stevenson entered his plea, the government filed

an Information and Notice of Intent that informed Stevenson that it was seeking

enhanced penalties based on his prior convictions that would subject him to a


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minimum mandatory sentence of life imprisonment. Looking to the plea

agreement itself, the first paragraph covering the terms of Stevenson’s plea states

that “defendant would ordinarily face a sentence of not less than ten years or more

than life imprisonment,” but “based upon the defendant’s prior felony drug

convictions, he faces a sentence of not less that Life imprisonment.” The

agreement goes on to state that the “parties further understand and agree that the

District Court’s discretion in imposing sentence is limited only b[y] the statutory

maximum sentence and any mandatory minimum sentence prescribed by statute for

the offense.” At his change of plea hearing before the magistrate judge, Stevenson

was asked whether he could read and write the English language. He responded

affirmatively. He was then asked whether he was able “to read all of the

documents like the indictment and the plea agreement.” He responded

affirmatively. The magistrate judge then went on to describe the penalty

Stevenson was facing. The judge noted that a conviction carried “a sentence of not

less than life imprisonment.” Stevenson was asked whether he understood that

penalty. He responded affirmatively. Stevenson reiterated that he fully

understood the agreement and its consequences. At the close of the hearing, the

magistrate judge expressly found that Stevenson understood the consequences of

pleading guilty.



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       There is a strong presumption that statements made during a plea colloquy

are true. United States v. Medlock, 

, 187 (11th Cir. 1994).

Consequently, a defendant bears a heavy burden to show that his statements under

oath were false. United States v. Rogers, 

, 168 (11th Cir. 1988).

Stevenson has not convinced us that the statements he made at the change of plea

hearing professing understanding of the mandatory life sentence he was facing

were false. He now argues that a person of his education and background could

not have understood that he was facing a mandatory life sentence because the

magistrate judge then went on to describe the supervised release penalty he faced.

The magistrate judge was required by Fed. R. Crim. P. 11(b)(1)(H) & (I) to inform

Stevenson of any maximum penalty, including supervised release, and to inform

him of any mandatory minimum penalty. Under 21 U.S.C. § 841(b)(1)(A),

Stevenson was subject to a mandatory ten years of supervised release; thus, the

magistrate judge was required to inform him of this fact. Nothing at the change of

plea hearing indicates that Stevenson understood the ten years supervised release

penalty to somehow supersede or alter the mandatory life sentence he was

otherwise facing.1 Stevenson also points out that at his sentencing hearing, when


       1
               Stevenson argues that discussing a term of supervised release after a term of life
imprisonment is illogical; however, at that time, he was still seeking a Substantial Assistance
departure pursuant to U.S.S.G. § 5K1.1 that could have allowed for a sentence below the
mandatory life sentence he was otherwise facing. See U.S.S.G. § 5K1.1 comment. (n.1). Had he

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the district court asked him whether his lawyer had discussed the sentence required

by law in his case that he replied that it was a “ten to life” sentence. Stevenson

then stated that his lawyer had not informed him that a life sentence was mandated

by statute in his case. The district court asked Stevenson’s lawyer whether he had

advised Stevenson of the sentence he was facing. Stevenson’s lawyer replied: “I

don’t know that I can ethically say that without violating confidentiality, but I

would indicate to the Court that I properly told Mr. Stevenson the Guideline

sentence and the sentence he was facing if he was not successful in obtaining a

5K1 from the government, which was life imprisonment.” Thus, his lawyer

informed him that if he did not receive a departure pursuant to § 5K1.1, which he

did not, that he was subject to a life sentence. This statement was in agreement

with the Information and Notice of Intent, the plea agreement itself, and statements

at the change of plea hearing, all of which indicated that Stevenson was subject to a

mandatory minimum life sentence and that he understood as such.

       Morever, “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



received that departure, any supervised release would have been quite consequential.
       Stevenson does not challenge the fact that the magistrate judge erroneously identified the
term of supervised release as life instead of ten years at the hearing.

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entered the plea.” United States v. Dominguez Benitez, 

, 83, 

, 2340 (2004). “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.” 

also not shown to a reasonable probability that, but for the alleged

error, he would not have entered the plea. He contends that the mandatory

sentence was not made clear to him until just before sentence was imposed. Yet he

did not move at that time to withdraw his guilty plea. Moreover, even assuming

arguendo that the requirements of Rule 11 were not met at the plea change hearing,

Stevenson still would have been motivated at that time to enter the plea agreement

because it kept open the possibility of a § 5K1.1 departure, which might have

resulted in a lower sentence. Certainly Stevenson brings this appeal and requests

the opportunity to withdraw his plea, but that alone is not enough to convince us to

a reasonable probability that he would not have entered the plea.

      Accordingly, we affirm Stevenson’s conviction.

                                           II.

      Stevenson also argues that his mandatory life sentence violates the Fifth and

Sixth Amendments because his qualifying prior convictions were not supported by

a jury finding. Stevenson concedes that this argument is contrary to Supreme Court



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and Eleventh Circuit precedent, but asserts that he wishes to preserve his argument.

       As Stevenson recognizes, the Supreme Court has held that the Sixth

Amendment does not require the government to allege in its indictment or to prove

beyond a reasonable doubt that a defendant’s prior convictions qualify him for

enhanced sentencing. Almendarez-Torres v. United States, 

, 226, 

, 1222 (1998). Because we are “bound by Almendarez-Torres until it is

explicitly overruled by the Supreme Court,” Stevenson’s argument is foreclosed by

precedent. United States v. Dowd, 

, 1253 (11th Cir. 2006). We

acknowledge both his desire to preserve this issue for appeal and his concession

that this panel can offer no relief on this point. Accordingly, we affirm

Stevenson’s sentence.

      AFFIRMED.




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