United States v. Reginald Alvin Milian , 185 F. App'x 860 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 21, 2006
No. 05-14947 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00089-CR-T-17-TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REGINALD ALVIN MILIAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 21, 2006)
Before ANDERSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Reginald Milian pled guilty to making a false written statement, in
connection with an attempt to acquire a firearm from a federally licensed dealer, in
violation of 18 U.S.C. § 922(a)(6). Milian was sentenced to 70 months’
imprisonment. Milian appeals, arguing that his guilty plea is invalid. After
review, we affirm.
During Milian’s change-of-plea hearing, the government proffered the
following factual basis for Milian’s plea:
On or about May 13th, 2003, in Hillsborough County, in the
Middle District of Florida, the Defendant, Reginald Milian, pawned
an Armalite AR-10 .308 caliber rifle at the University Gun and Pawn
Shop . . . .
On July 3rd, 2003, the Defendant returned to the University
Gun and Pawn Shop and attempted to reacquire the Armalite AR-10
.308 caliber rifle and falsely answered no to the question of whether
he had ever been convicted of a felony offense on ATF From 4473,
the Firearms Transaction Record.
This response was untrue, as the Defendant had been previously
convicted of robbery . . . and sexual assault on a child by one in a
position of trust . . . .
Milian agreed that the government’s recitation of the facts was accurate. The
district court subsequently accepted Milian’s guilty plea.
On appeal, Milian argues for the first time that, because the government did
not establish on the record that the pawn shop where he attempted to acquire the
firearm was a federally licensed dealer, the district court did not establish a
sufficient factual basis for his guilty plea. Where, as here, a defendant fails to
object to a Rule 11 violation in the district court, we review for plain error. United
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States v. Monroe, 353 F.3d 1346, 1349 (11 th Cir. 2003).1 Under plain error review,
there must be (1) an error, (2) that is plain, and (3) that affects substantial rights.
Id. “If all three conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error ‘seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.’” Id. “Further, in
the Rule 11 context, the reviewing court may consult the whole record when
considering the effect of any error on substantial rights.” Id. (quotation marks
omitted). The defendant bears the burden of showing that an error affected his
substantial rights. United States v. Bejarano, 249 F.3d 1304, 1306 (11 th Cir. 2001).
In order to prove that a district court committed plain error under Rule 11, a
defendant 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 (2004).
Rule 11(b)(3) requires that the district court, before entering judgment on a
guilty plea, “determine that there is a factual basis for the plea.” Fed. R. Crim. P.
11(b)(3). This requirement serves the purpose of protecting “a defendant who
mistakenly believes that his conduct constitutes the criminal offense to which he is
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We reject Milian’s argument that this Court should apply the de novo standard of review
applicable to Rule 11 voluntariness challenges. Milian’s appeal does not assert a voluntariness
challenge.
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pleading.” United States v. Frye, 402 F.3d 1123, 1128 (11 th Cir.), cert. denied, 125
S. Ct. 2986 (2005). “The standard for evaluating challenges to the factual basis for
a guilty plea is whether the trial court was presented with evidence from which it
could reasonably find that the defendant was guilty.” Id. (quotation marks
omitted).
“To sustain a conviction under § 922(a)(6), the government must prove
beyond a reasonable doubt that: (1) the defendant knowingly made; (2) a false or
fictitious written statement in connection with the purchase of firearms; (3)
intended to deceive or likely to deceive a licensed firearms dealer; (4) and the false
statement was a fact material to the lawfulness of the sale or disposition of the
firearm.” United States v. Ortiz, 318 F.3d 1030, 1036 (11 th Cir. 2003).
Here, the government presented sufficient evidence from which the district
court reasonably could have determined that Milian was guilty of the charged
offense. Milian admitted at the plea colloquy that, when he went to reacquire the
firearm at the University Gun and Pawn Shop, he filled out an ATF Form 4473.
This fact was sufficient for the district court to have reasonably concluded that
University Gun and Pawn Shop was federally licensed, as federally licensed
firearms dealers use this form.
Moreover, even assuming that the district court committed error by
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accepting Milian’s guilty plea, Milian has not carried his burden to show prejudice.
Milian has not alleged, much less proven, that, had the government included in its
proffer that University Gun and Pawn Shop was federally licensed, he would not
have pled guilty. Accordingly, we affirm Milian’s conviction and sentence.
AFFIRMED.
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