Case: 12-15760    Date Filed: 11/15/2013   Page: 1 of 6


                                                            [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 12-15760
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 6:12-cr-00135-GAP-GJK-3


UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

MARTOVOUS D. OLIVER,

                                                            Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                              (November 15, 2013)

Before MARCUS, WILSON and JORDAN, Circuit Judges.

PER CURIAM:

      Martovous Oliver appeals his conviction for conspiracy to distribute a

controlled substance, in violation of 21 U.S.C. §§ 846 and 841(a)(1), resulting
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from his guilty plea. Oliver’s indictment alleged that the offense involved 500

grams or more of cocaine. At his plea hearing, Oliver acknowledged that his

offense had involved an attempt to purchase one kilogram of cocaine, but the

district court did not mention drug weight in informing him of the elements of his

conspiracy offense. On appeal, he argues that his guilty plea was not knowing and

voluntary because the district court failed to inform him during his change of plea

hearing that the government would be required to prove drug weight as an element

of the offense. After thorough review, we affirm.

      When a defendant objects for the first time on appeal to deficiencies in his

Fed.R.Crim.P. 11 plea colloquy, we review for plain error.          United States v.

Monroe, 

, 1349 (11th Cir. 2003). To establish plain error, the

defendant must show: (1) there is error; (2) that is plain; and (3) affected his

substantial rights; and if those three prongs are met, we have discretion to correct

an error (4) that seriously affected the fairness, integrity or public reputation of

judicial proceedings. United States v. Moriarty, 

, 1019 (11th Cir.

2005). As to the third prong, “a defendant who seeks reversal of his conviction

after a guilty plea, [on the basis of plain error], must show a reasonable probability

that, but for the error, he would not have entered the plea.” United States v.

Dominguez Benitez, 

, 83 (2004). Moreover, when the district court

refers a dispositive matter to a magistrate, a party has 14 days to submit written


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objections after being served with a copy of the magistrate’s recommended

disposition. Fed.R.Crim.P. 59(b)(2). “Failure to object in accordance with this

rule waives a party’s right to review.”       Id.; accord United States v. Garcia-

Sandobal, 

, 1282-83 (11th Cir. 2013) (holding that a defendant

“waived his right to appellate review” on his claim that the district court had erred

in accepting his guilty plea because he failed to file a timely objection to the

magistrate judge’s report and recommendation that the plea be accepted).

      Because a defendant waives a number of constitutional rights by entering a

guilty plea, due process requires that he make the plea “knowingly and

voluntarily.” United States v. Moriarty, 

, 1019 (11th Cir. 2005). In

accepting a defendant’s guilty plea, a court “must comply with Rule 11 and

specifically address three ‘core principles,’ ensuring that a defendant (1) enters his

guilty plea free from coercion, (2) understands the nature of the charges, and (3)

understands the consequences of his plea.” 

held that “there is no one

mechanical way or precise juncture that a district court is required to inform the

defendant of the nature of the charges in the Rule 11 colloquy.” United States v.

Wiggins, 

, 1443 (11th Cir. 1997). Instead, the district court must

“review the particular charge and colloquy and determine whether the core

objective of [Rule 11] was satisfied.” 

Factors in this analysis include

“the complexity of the offense and the defendant’s intelligence and education.”


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United States v. Telemaque, 

, 1249 (11th Cir. 2001). A defendant’s

“prior involvement in the court system” could also make “quick comprehension

more probable.” 

Moreover, “[p]ossession with intent to distribute .

. . and conspiracy to do the same are not of course the most complicated of

offenses.”   

  Under Rule 11, the district court must “inform the

defendant of, and determine that the defendant understands . . . the nature of each

charge to which the defendant is pleading.”               Fed.R.Crim.P. 11(b)(1)(G).

Additionally, “[b]efore entering judgment on a guilty plea, the court must

determine that there is a factual basis for the plea.” Fed.R.Crim.P. 11(b)(3).

      Anyone conspiring to commit a federal drug offense “shall be subject to the

same penalties as those prescribed for the offense, the commission of which was

the object of the . . . conspiracy.” 21 U.S.C. § 846. When someone with a prior

felony drug conviction is convicted of possession with intent to distribute 500

grams or more of a substance containing a detectable amount of cocaine, he shall

be sentenced to a minimum of 10 years’ imprisonment and a maximum of life

imprisonment. 

However, when the amount of cocaine is

unspecified, someone with a prior felony drug conviction shall be sentenced to a

maximum of 30 years’ imprisonment.            

     To establish a

conspiracy to possess cocaine with intent to distribute, the government must prove

beyond a reasonable doubt that (1) an illegal agreement existed; (2) the defendant


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knew of it; and (3) the defendant, with knowledge, voluntarily joined it. United

States v. Hernandez, 

, 1333 (11th Cir. 2005).

      The Supreme Court has held that “[o]ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.”

Apprendi v. New Jersey, 

, 490 (2000). Applying Apprendi in the

drug quantity context, we have held that the specific quantity of drugs for which a

defendant is accountable does not become an element of a drug conviction unless it

is used to sentence the defendant beyond the statutorily prescribed maximum

penalty for the smallest detectable quantity. United States v. Clay, 

,

1301 (11th Cir. 2004). However, the Supreme Court has since held also that any

fact that increases the mandatory minimum is an “element” that must be submitted

to the jury. Alleyne v. United States, 

, 2155 (2013). In the context

of a guilty plea, such an element may be established when the defendant admits the

facts in question. See United States v. Booker, 

, 244 (2005) (stating

that “[a]ny fact . . . which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty . . . must be

admitted by the defendant or proved to a jury beyond a reasonable doubt.”).

      Here, Oliver waived any challenge to the Rule 11 plea proceeding, even for

plain error, by failing to object to the magistrate’s report and recommendation.


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Fed.R.Crim.P. 59(b)(2). Nevertheless, even reviewing the matter for plain error,

we find no merit to Oliver’s argument. He has failed to establish that he did not

understand that the charge against him involved a drug weight of more than 500

grams of cocaine -- especially since the government alleged that drug type and

quantity in the indictment, and he agreed to it in the plea agreement that he signed

and initialed. Furthermore, at his plea colloquy, he acknowledged that the factual

basis for the offense, including the alleged drug weight of one kilogram, was “true

and accurate.” What’s more, when the presentence investigation report (“PSI”)

attributed a kilogram of cocaine to the conspiracy, he did not object to that weight

and filed a sentencing memorandum in which he adopted the PSI’s statement of

facts. He also admitted to the district court at sentencing that the offense involved

one kilogram of cocaine. Finally, he indicated that his attorney had explained both

the nature of the charge against him and the terms of his plea agreement. In short,

because Oliver has neither argued nor offered any evidence to suggest that there is

a reasonable probability that he would not have entered the plea, and instead gone

to trial, if not for the alleged error, we can find no plain error in Oliver’s Rule 11

plea proceeding. See Dominguez 

.

      AFFIRMED.




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