Filed: May 20, 2008
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT May 20, 2008 No. 07-12423 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 06-00049-CR-KD UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KARMELL DEMETRIUS JOHNSON, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Alabama _ (May 20, 2008) Before ANDERSON, HULL and FAY, Circuit Judges. PER CURIAM: Karmell
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT May 20, 2008 No. 07-12423 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 06-00049-CR-KD UNITED STATES OF AMERICA, Plaintiff-Appellee, versus KARMELL DEMETRIUS JOHNSON, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Alabama _ (May 20, 2008) Before ANDERSON, HULL and FAY, Circuit Judges. PER CURIAM: Karmell ..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 20, 2008
No. 07-12423 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00049-CR-KD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KARMELL DEMETRIUS JOHNSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(May 20, 2008)
Before ANDERSON, HULL and FAY, Circuit Judges.
PER CURIAM:
Karmell Demetrius Johnson appeals his convictions for (1) conspiracy to
distribute and to possess with the intent to distribute more than 50 grams of crack
cocaine, 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A) (count 1), and (2) using,
carrying, or possessing a firearm in furtherance of a drug trafficking crime, 18
U.S.C. § 924(c)(1) (count 11). Johnson argues that the district court failed to
specifically inform him that the mandatory minimum term of imprisonment, and
the only sentence that would be imposed, for count 1of the indictment was life
imprisonment without release. Accordingly, he contends that the court failed to
ensure that he understood the consequences of his guilty plea as required by
Fed.R.Crim.P. 11. Johnson concedes, however, that this Court should review his
claim for plain error because he failed to raise the Rule 11 issue in the district
court. For the reasons set forth more fully below, we affirm Johnson’s conviction.
When a defendant fails to assert a Rule 11 violation in the district court, he
must show plain error on direct appeal to be entitled to relief. United States v.
Vonn,
535 U.S. 55, 58-59,
122 S. Ct. 1043, 1046,
152 L. Ed. 2d 90 (2002). “Plain
error occurs where (1) there is an error; (2) that is plain or obvious; (3) affecting
the defendant’s substantial rights in that it was prejudicial and not harmless; and
(4) that seriously affects the fairness, integrity, or public reputation of the judicial
proceedings.” United States v. Hall,
314 F.3d 565, 566 (11th Cir. 2002). “[A]
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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). We may review the entire record when considering the effect of any
error on the defendant’s substantial rights.
Vonn, 535 U.S. at 59, 122 S.Ct. at
1046; see also United States v. Jones,
143 F.3d 1417, 1420 (11th Cir. 1998).
Before the district court accepts a guilty plea, the court must address the
defendant in open court and ensure that the defendant understands, inter alia, “any
maximum possible penalty, including imprisonment, fine, and term of supervised
release” and “any mandatory minimum penalty.” Fed.R.Crim.P. 11(b)(1)(H), (I).
Moreover, we have held that the district court “must ensure that the three core
concerns of Rule 11 . . . have been met: (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. Lejarde-Rada,
319 F.3d 1288, 1289 (11th Cir. 2003) (quotation omitted).
We provide a strong presumption of truth for statements made by the defendant
during the plea colloquy. United States v. Medlock,
12 F.3d 185, 187 (11th Cir.
1994).
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Here, the record indicates that Johnson was advised, both in the written plea
agreement and at the change-of-plea hearing, of the statutory penalties that could
be imposed following his guilty plea to count 1 of the indictment. The written plea
agreement explicitly stated that the statutory penalties included a minimum
sentence of 10 years’ imprisonment and a maximum sentence of life imprisonment.
The agreement went on to state, however, that based on the government’s notice of
enhancement, Johnson would be subject to a mandatory minimum sentence of life
imprisonment as to count 1. Johnson signed the plea agreement, affirming that he
had reviewed it with trial counsel and that he understood its terms.
At the change-of-plea hearing, the district court directly questioned Johnson
about the plea agreement, and Johnson confirmed that he had reviewed it with
counsel and that he understood its terms. The court explicitly advised Johnson of
the statutory penalties applicable to count 1 of the indictment and went on to
explain that the government had filed a notice of enhancement which, if the court
found that Johnson was eligible based on his prior convictions, would subject him
to a mandatory minimum sentence of life imprisonment. The court asked Johnson
if he understood the consequences of his guilty plea as to count 1, and Johnson
responded that he did. The district court further explained that parole had been
abolished in the federal system and verified that Johnson understood that he would
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not be released on parole during his term of imprisonment. There was no
ambiguity in Johnson’s statements to the court or other indication that he did not
understand the proceeding.
Although the district court discussed the application of the Sentencing
Guidelines and the imposition of a term of supervised release following Johnson’s
imprisonment, the court did not err in advising Johnson of these possibilities, as
required under Rule 11, because it had not yet determined whether Johnson’s prior
convictions qualified him for a § 851 enhancement, or whether there were any
grounds for a downward departure. See Fed.R.Crim.P. 11(b)(1)(H), (M).
Moreover, Johnson never expressed any confusion as to the sentence he faced and
never attempted to withdraw his plea. Further, to the extent Johnson argues that he
was misled by the presentence investigation report (“PSI”), the record indicates
that the PSI correctly stated that Johnson was subject to a mandatory term of life
imprisonment as to count 1. Johnson stated that he had reviewed the PSI and did
not object to it at sentencing. Accordingly, the district court satisfied the core
concerns of Rule 11 and there was no plain error.
In light of the foregoing, Johnson’s conviction is
AFFIRMED.
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