Case: 13-13329   Date Filed: 02/10/2014   Page: 1 of 4


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 13-13329
                       Non-Argument Calendar
                     ________________________

              D.C. Docket No. 1:13-cr-00002-MW-GRJ-1



UNITED STATES OF AMERICA,


                                                             Plaintiff -Appellee,


                                 versus


DONALD LEE PHELPS,


                                                        Defendant -Appellant.

                     ________________________

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

                           (February 10, 2014)
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Before MARCUS, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

      Donald Lee Phelps appeals his conviction for aggravated identity theft, in

violation of 18 U.S.C. § 1028A(a)(1) and (2) (“Count 2”). On appeal, Phelps

argues that: (1) the district court violated Fed.R.Crim.P. 11 and committed

reversible error because he was not informed in the plea agreement or at the plea

colloquy that Count 2 carried a mandatory minimum two-year sentence; and (2)

reversal cannot be avoided based on his failure to object to the presentence

investigation report (“PSI”) because the PSI did not clearly explain that the two-

year sentence was the mandatory minimum. After careful review, we affirm.

      We review a district court’s compliance with Fed.R.Crim.P. 11 for plain

error where the defendant did not try to withdraw his plea before the district court.

United States v. Gandy, 

, 1240 (11th Cir.), cert. denied, 

(2013). In order to establish plain error, a defendant must show: (1) error (2)

that is plain and (3) affects substantial rights. United States v. Rodriguez, 

, 1298 (11th Cir. 2005). If all three conditions are met, then we may exercise

our discretion to correct an error if (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings. 

review the

entire record to determine whether any error affected a defendant’s substantial

rights. United States v. Moriarty, 

, 1020 n.4 (11th Cir. 2005). When


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a defendant “seeks reversal of his conviction after a guilty plea, on the ground that

the district court committed plain error under Rule 11, [he] must show a reasonable

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

States v. Dominguez Benitez, 

, 83 (2004).

      A guilty plea must be given knowingly and voluntarily. United States v.

Brown, 

, 476 (11th Cir. 1997). To this end, the district court must

address the defendant in open court to ensure that he understands the consequences

of his plea. See Fed.R.Crim.P. 11(b)(1) and (2); 

. The

consequences of a guilty plea include “any mandatory minimum penalty.”

Fed.R.Crim.P.11(b)(1)(I). We have held that compliance with Fed.R.Crim.P. 11 is

mandatory, but failure to advise a defendant of certain information contained in

Fed.R.Crim.P. 11(b)(1) does not necessarily require reversal. 

-20.

      A technical defect does not affect a defendant’s substantial rights as long as

the three “core concerns” of Fed.R.Crim.P. 11 are satisfied. United States v.

Monroe, 

, 1354 (11th Cir. 2003). These concerns are: (1) that the

guilty plea was voluntary; (2) that the defendant understood the nature of the

charges; and (3) that the defendant understood the consequences of his plea. 

A district court’s failure to advise a defendant during a plea colloquy that he

faced a mandatory minimum sentence is error. See United States v. Brown, 586


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, 1346 (11th Cir. 2009) (analyzing a maximum term of supervised

release). Such a failure does not affect a defendant’s substantial rights when his

PSI listed the correct sentence, and he failed to object to the PSI or to the sentence

imposed. United States v. Bonilla, 

, 1239 (11th Cir. 2009).

      We recognize that the district court erred in this case because Phelps was not

informed in the plea agreement or at the plea colloquy that Count 2 carried a

mandatory minimum sentence. Nevertheless, the district court’s error did not

affect Phelps’s substantial rights nor does it affect the fairness or integrity of our

judicial proceedings. The PSI clearly provided that for Count 2, the term of

imprisonment, which was required by statute, was “two years, pursuant to 18

U.S.C. § 1028A(a)(1),” and again noted that a “consecutive two years of

imprisonment [was] statutorily required as to Count 2.” Notably, Phelps never

objected to the PSI or to the sentence as to Count 2. Therefore, his substantial

rights were not affected. 

. Furthermore, Phelps argued in

his sentencing memorandum and at the sentencing hearing that a total sentence that

included a two-year consecutive sentence for Count 2 would be sufficient and

adequate. Thus, on this record, there is no indication that Phelps would not have

pleaded guilty to Count 2 had he known that the two-year sentence was required.

Dominguez 

.

      AFFIRMED.


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