TJOFLAT, Circuit Judge:
David Edmond was indicted for conspiracy to commit access-device fraud and aggravated identity theft based upon his use of social security numbers to make fraudulent bank transfers. Pursuant to a plea agreement, he pleaded guilty to possession of fifteen or more unauthorized access devices — an unindicted offense — and one count of aggravated identity theft. On the basis of this plea, the District Court sentenced Edmond to prison for a total of forty-eight months.
Edmond now appeals his sentence. First, he argues that the District Court lacked jurisdiction because Count One of the indictment failed to state an offense. Second, he argues that the District Court erroneously calculated his number of victims resulting in an unduly large sentence. We reach neither argument. Instead, we notice plain error and reverse his conviction for possession of fifteen or more access devices. And, because this reversal eliminates the factual support for an element of his aggravated identity-theft conviction, we also reverse that conviction for lack of sufficient evidence.
From sometime in January to the beginning of April 2013, Edmond and his co-conspirator, Sheenequa Angel Michel, allegedly engaged in a scheme to fraudulently transfer money using unauthorized "replacement cards."
By April 1, 2013, Michel had transferred two lists, each containing the information of ninety BofA customers, to Edmond. Edmond attempted to change the address of approximately sixty.
On April 1, 2013, Michel created a third list of personal identification information for ninety BofA customers. However, before she could transfer the list to Edmond, BofA representatives — presumably after investigating identity-theft complaints — confronted her. Michel admitted her involvement in the conspiracy to the representatives, and, after waiving her Miranda rights, she admitted the same to law enforcement officers. She agreed to cooperate with their investigation into Edmond's activities and provided the officers with the 180 sets of personal identification information she had already transferred to Edmond.
Michel subsequently transferred another list of ninety names to Edmond on April 11, 2013. Unbeknownst to Edmond, this list consisted of controlled identities provided by law enforcement. Following the transfer, agents arrested Edmond. Like Michel, he waived his Miranda rights. He then voluntarily admitted that Michel had, without authorization, previously supplied him with BofA customers' personal identification information, including social security numbers. In the course of their investigation, law enforcement learned about Edmond's successes and failures in obtaining and using replacement cards to fraudulently transfer money. Law enforcement also obtained surveillance photographs of Edmond using four of the unauthorized replacement cards to make fraudulent transactions.
On April 30, 2012, a Southern District of Florida grand jury returned a seven-count indictment against Edmond and Michel. Count One alleged that Edmond and Michel committed fraud in connection with access devices, stating that the two
Counts Two through Seven alleged aggravated identity theft, 18 U.S.C. § 1028A(a)(1)-(2)
On July 29, 2013, Edmond entered into a plea agreement with the government in which he would plead guilty to Counts One and Three in exchange for the dismissal of the remaining five counts. The plea agreement, however, incorrectly described Count One as "possession of fifteen (15) or more unauthorized access devices in violation of Title 18, United States Code, Section 1029(a)(3)." Furthermore, the plea agreement stated that Count One carried a maximum statutory penalty of ten years' imprisonment. Although a § 1029(a)(3) violation does carry a ten-year penalty, 18 U.S.C. § 1029(c)(1)(A)(i), the penalty for conspiracy to commit access device fraud — the actual crime with which the grand jury charged Edmond — carries a penalty of five years, 18 U.S.C. § 1029(b)(2).
Along with this plea agreement, Edmond signed a factual proffer admitting the facts recounted above. That proffer concludes with the statement that Edmond "conspired to knowingly and with the intent to defraud, possess fifteen (15) or more unauthorized access devices" and "did knowingly transfer, possess, and use, without lawful authority, the means of identification of one hundred and eighty (180) other persons." These statements tracked the statutory language of Counts One and Three as charged in the indictment. Neither the prosecution nor the defense, however, noted the glaring inconsistency between the offenses described in the proffer and those described in the plea agreement.
Unfortunately, the District Court did not notice the problem either. During Edmond's plea colloquy, the court first confirmed that Edmond had a full opportunity to review both the indictment and plea agreement with his attorney. After accepting Edmond's answer that he understood the contents of both documents — an answer which demonstrated that he understood neither, given that the documents referred to different crimes — the court explained that "[u]nder the plea agreement, you've agreed to plead guilty to Count 1 of the indictment, which charges you with possession of 15 or more unauthorized access devices, in violation of Title 18, United States Code, Section 1029(a)(3)." The court also explained that Count One carried a maximum penalty of ten years.
The District Court then set out to confirm that Edmond had actually committed the crimes to which he was to plead guilty. It accomplished this feat by confirming that Edmond had reviewed the factual proffer with his attorney and that he understood and agreed to its contents. Unfortunately, the District Court did not refer to any facts that might have made manifest the offense to which Edmond was pleading. Following this exchange, the court accepted his guilty plea as to Counts
Following the sentencing hearing and a review of the presentence investigation report ("PSI"),
In his appeal, Edmond argues for the first time that Count One of the indictment was insufficient to state an offense — and therefore that the District Court lacked jurisdiction over that count — because social security numbers, the "access device" required for the conspiracy count, are not access devices as defined in 18 U.S.C. § 1029(e)(1). Furthermore, because the aggravated identity-theft conviction cannot stand absent a conviction under Count One, he argues that we must reverse his conviction on Count Three as well. See 18 U.S.C. § 1028A(a)(1).
After hearing oral argument on these issues, we discovered that both the plea agreement and plea colloquy assume that Count One of the indictment charged Edmond with possession of fifteen or more unauthorized access devices under 18 U.S.C. § 1029(a)(3).
As stated, neither party briefed, let alone noticed, the issue that Edmond pleaded guilty to a crime for which he was not indicted. We nonetheless may review a District Court's acceptance of a defendant's guilty plea sua sponte for plain error. See Meadows ex rel. Meadows v. Cagle's, Inc., 954 F.2d 686, 693-94 (11th Cir.1992). To find plain error, there must be: (1) error, (2) that is plain, and (3) that has affected the defendant's substantial rights. United States v. Olano, 507 U.S. 725, 735-36, 113 S.Ct. 1770, 1778-79, 123 L.Ed.2d 508 (1993). An error affects a defendant's substantial rights when it is "prejudicial: It must have affected the out-come of the district court proceedings." Id. at 734, 113 S.Ct. at 1777-78. Even if all three prongs are met, we can only reverse if the error is so grave that allowing it to stand would "seriously affect the fairness, integrity, or public reputation of judicial proceedings." Id. at 732, 113 S.Ct. at 1776 (alteration omitted) (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985)) (quotation marks omitted).
The Fifth Amendment provides that "[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." U.S. Const. amend. V. "Simply put, a defendant can be convicted only of a crime charged in the indictment." United States v. Madden, 733 F.3d 1314, 1318 (11th Cir.2013). In this case, the District Court violated Edmond's constitutional rights by accepting a guilty plea for a crime not charged in the indictment.
Accordingly, we find that accepting Edmond's guilty plea was plain error. We therefore reverse Edmond's conviction as to the unindicted 18 U.S.C. § 1029(a)(3) offense. Furthermore, because his conviction
REVERSED.
It is clear to us, however, that everyone understood "Count One" to refer to a possession charge. The plea agreement talked about a possession charge, listed the possession statute, and cited the statutory penalty for possession. The District Court did the same, and the judgment of conviction lists 18 U.S.C. § 1029(a)(3) as Count One (although it does, erroneously, state that this provision regards a conspiracy). Furthermore, the District Court never discussed any facts that might have made clear that Edmond was pleading guilty to a conspiracy. The record before us is simply barren of any suggestion that Edmond was pleading guilty to anything but a possession charge. We are unwilling to accept that when Edmond pleaded guilty to "Count One," he was actually pleading guilty to a conspiracy charge to which the attorneys and District Court were oblivious.