[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                 FILED
                                                         U.S. COURT OF APPEALS
                               No. 08-16488                ELEVENTH CIRCUIT
                                                               JUNE 1, 2009
                           Non-Argument Calendar
                                                            THOMAS K. KAHN
                         ________________________
                                                                 CLERK

                      D. C. Docket No. 08-00099-CR-KD

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

DONALD WAYNE RAY, JR.,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Alabama
                        _________________________

                                 (June 1, 2009)

Before CARNES, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

     Donald Wayne Ray, Jr. appeals his sentence for conspiracy with intent to
distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Ray argues

that (1) the government breached the plea agreement by advocating a 10-year

statutory minimum term of imprisonment at sentencing, despite the plea

agreement’s provision that a 5-year statutory minimum applied, and (2) his

decision to proceed with sentencing, rather than withdraw his guilty plea, was

involuntary because it was influenced by (a) the government’s threat to withdraw

its U.S.S.G. § 5K1.1 motion and (b) the district court’s participation in the plea

negotiations in violation of Fed.R.Crim.P. 11(c)(1).

I.    Breach of Plea Agreement

      Ray does not wish to withdraw his guilty plea; rather, he seeks to enforce the

5-year mandatory minimum set forth in the plea agreement. Ray notes that the

government and the district court both stated, at the Rule 11 proceeding, that his

applicable statutory mandatory minimum sentence was 5 years. He contends that

the five-year mandatory minimum penalty “was a material part of the consideration

for [his] guilty plea” and notes that, until the sentencing hearing, the government

had consistently asserted that the applicable statutory minimum was five years’

imprisonment. Thus, Ray contends that the government’s advocacy, at sentencing,

of a ten-year mandatory minimum breached the plea agreement, because it was

“fundamentally incompatible” with the provisions of the plea agreement.



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      Although there was a misrepresentation at the plea hearing that the statutory

mandatory minimum was 5 years, the trial judge corrected that error at sentencing

and gave the defendant and his counsel the opportunity to defer sentencing and

hold a hearing addressing whether Ray would be permitted to withdraw his guilty

plea. Ray declined, choosing instead to proceed with sentencing. Further, Ray did

not object to the sentence after it was imposed.

      Since his claims that the government breached the plea agreement were

unpreserved by an objection during the sentencing, plain error review applies. See

Puckett v. United States, 556 U.S. __, 

, 1443, 

(2009). Under plain error review, there must be (1) error, (2) that is plain, and (3)

that affects substantial rights. United States v. Shelton, 

, 1328-29

(11th Cir. 2005). When a defendant challenges the government’s breach of a plea

agreement and the breach relates to the defendant’s rights at sentencing, the

defendant cannot show that he suffered prejudice unless he shows that his sentence

would have been different in the absence of the breach. Puckett, 556 U.S. at __,

129 S.Ct. at 1433 n.4.

      In this case, the district court stated that it would have sentenced Ray to 120

months’ imprisonment, even if it applied the 5-year mandatory minimum set forth

in the plea agreement. Thus Ray has failed to show that the alleged breach affected



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his substantial rights because he suffered no prejudice as a result of the alleged

breach. Accordingly, he has failed to show plain error.

II.   Decision to Continue With Sentencing

      Ray argues that he did not effectively waive his right to withdraw his guilty

plea, because the waiver was not voluntary, in light of the government’s threat to

withdraw its U.S.S.G. § 5K1.1 motion if he withdrew his plea. He contends that it

is unconstitutional for the government to refuse to file a § 5K1.1 motion as

punishment for exercising his Sixth Amendment rights. Ray secondly contends

that his decision to persist in his guilty plea was unduly influenced by that court’s

statement that it had “every intention of giving [Ray] 120 months today.” He

asserts that this statement violated Fed.R.Crim.P. 11(c)(1)’s prohibition on courts

participating in plea negotiations. Ray argues that the combination of the breach of

the plea agreement, the government’s improper threat to withhold its § 5K1.1

motion, and the court’s involvement in plea negotiations constituted plain error.

      First, we do not construe the government’s observation at sentencing that

withdrawing the guilty plea might preclude the possibility of a future § 5K1.1

motion as a threat. Moreover, because Ray does not contend that he would have

withdrawn his guilty plea in the absence of the government’s “threat,” Ray has

failed to establish any prejudice to his substantial rights and thus failed to show



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plain error.

       Second, we find no merit to Ray’s argument that the district court

impermissibly participated in the plea negotiations. Because Ray bases his Rule 11

challenge solely on comments the district court made during sentencing, rather

than during the plea bargaining process, and because we have never applied Rule

11 to a district court’s post-plea comments, Ray has failed to establish plain error.

Accordingly, we affirm Ray’s sentence.

       AFFIRMED.




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