United States v. Chester Risco ( 2022 )


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  • USCA11 Case: 21-11881     Date Filed: 06/02/2022   Page: 1 of 10
    [DO NOT PUBLISH]
    In the
    United States Court of Appeals
    For the Eleventh Circuit
    ____________________
    No. 21-11881
    Non-Argument Calendar
    ____________________
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    CHESTER RISCO,
    Defendant-Appellant.
    ____________________
    Appeal from the United States District Court
    for the Middle District of Florida
    D.C. Docket No. 2:20-cr-00063-SPC-MRM-1
    ____________________
    USCA11 Case: 21-11881              Date Filed: 06/02/2022     Page: 2 of 10
    2                          Opinion of the Court                    21-11881
    Before BRANCH, LUCK, AND BRASHER, Circuit Judges.
    PER CURIAM:
    Chester Risco appeals his convictions following his guilty
    plea to four drug-related counts. He argues for the first time on
    appeal that his plea was involuntary and unknowing because the
    district court failed to inform him (and he did not understand) that
    he would be sentenced based on a greater amount of drugs than
    the amount specified during the plea colloquy. Because there was
    no plain error and Risco’s plea is valid, we affirm.
    I.       Background
    A grand jury indicted Risco on four counts of distributing a
    controlled substance containing a detectable amount of
    methamphetamine, in violation of 
    21 U.S.C. § 841
    (a)(1) and
    (b)(1)(C). The indictment did not specify any drug quantity.
    Risco entered an open plea of guilty to all four counts. At
    the change-of-plea hearing, Risco testified that he was 36 years old,
    possessed a GED, and could read, write, and understand English.
    He confirmed that he was not under the influence of any drugs,
    alcohol, or medication. The magistrate judge advised Risco of the
    rights that he would be waiving by pleading guilty, and Risco stated
    that he understood. 1 The magistrate judge advised Risco of the
    charges against him, reviewed the essential elements of each count,
    1
    Risco consented to the magistrate judge conducting the plea hearing.
    USCA11 Case: 21-11881        Date Filed: 06/02/2022      Page: 3 of 10
    21-11881                Opinion of the Court                         3
    and informed Risco that the government would have to prove its
    case beyond a reasonable doubt. Risco confirmed that he
    understood and did not have any questions. The magistrate judge
    then explained that each count carried a statutory maximum of 20
    years’ imprisonment, and that the district court had the authority
    to impose a sentence up to the maximum and to run sentences
    consecutively. The magistrate judge emphasized that Risco’s
    sentence could be higher than any estimate he had received from
    his lawyer, but that even if that was the case, it would not be a basis
    for withdrawing his plea. Risco confirmed that he understood.
    The government informed the court that it previously extended
    formal plea agreements to Risco, but he rejected them and opted
    to enter an open plea. Risco confirmed that the government’s
    statement was true and that he desired to plead guilty without the
    benefit of a plea agreement.
    The magistrate judge then asked the government for a
    factual proffer. In relevant part, the government asserted that, on
    four separate occasions, Risco sold methamphetamine to a
    confidential informant in the amounts of 4.54 grams, 13.25 grams,
    7.14 grams, and 6.55 grams, respectively. The magistrate judge
    asked Risco if he “hear[d] everything the prosecutor just said,” and
    Risco asked, “Just so I get it straight, there’s four charges with a
    total of 31.—some-odd grams of methamphetamines that were
    sold and that I would be pleading guilty to today?” The
    government responded:
    USCA11 Case: 21-11881        Date Filed: 06/02/2022      Page: 4 of 10
    4                       Opinion of the Court                 21-11881
    [A]s a technical matter, the government hasn’t
    alleged any specific quantity of methamphetamine in
    the indictment. The government’s burden would be
    to show that some amount of methamphetamine was
    distributed on the four occasions. I did specifically
    state how much the government believes was
    distributed on each of those occasions. . . .
    I would just like to make clear, however, Your
    Honor, just in case this is not apparent, that is not
    necessarily all that Mr. Risco could be held to
    account—it’s not the government’s position that Mr.
    Risco couldn’t be held responsible for more
    methamphetamine at a sentencing hearing, but this is
    what [the government] was prepared to prove for
    those four particular deals.
    The magistrate judge asked Risco’s counsel if he had “anything
    further on that topic” and counsel stated “No, Your Honor, we’re
    aware that, out of the four counts, the total is 31.48, and that’s what
    my client’s pleading to today.” The magistrate judge then asked
    Risco if he understood the discussion, and Risco stated “Yes, sir,
    that I’m pleading out to the four counts with the amount specified
    just then. At the moment, yes.” The magistrate judge emphasized
    that it was important that Risco understand that the amount the
    government specified was what it was prepared to prove if the case
    went to trial, “but that it’s not bound to those quantities for
    purposes of sentencing,” and Risco stated that he understood.
    Risco then admitted to the factual basis of the plea, and confirmed
    that he was entering the plea freely and voluntarily because he was
    USCA11 Case: 21-11881          Date Filed: 06/02/2022      Page: 5 of 10
    21-11881                 Opinion of the Court                           5
    in fact guilty. The magistrate judge found that Risco’s plea was
    freely, voluntarily, knowingly, and intelligently entered, and
    recommended that the district court accept his plea. The district
    court accepted the plea.
    Risco’s presentence investigation report (PSI) indicated that
    he was deemed responsible for distributing 920.5 grams of
    methamphetamine and 35.0 grams of fentanyl. Risco objected to
    the amount of drugs attributed to him, arguing that he should be
    held accountable for only the 31 grams he sold to the confidential
    informant.2
    At the sentencing hearing, Risco reiterated his objections to
    the drug amounts attributed to him, arguing that he should only
    be held accountable for the amount seized and admitted to in his
    plea, and that drugs related to his personal use should have been
    excluded from the calculation. After hearing argument from the
    government and testimony from the detective involved in the case
    and from Risco himself, the district court overruled Risco’s
    objection. Risco’s resulting guidelines range was 210 to 262
    months’ imprisonment.
    Prior to the district court pronouncing sentence, Risco’s
    counsel indicated that Risco wanted to provide an allocution.
    During his allocution, Risco indicated that he did not “feel like this
    2
    This opinion does not discuss Risco’s objections to the PSI that are not
    relevant to the issue on appeal.
    USCA11 Case: 21-11881        Date Filed: 06/02/2022      Page: 6 of 10
    6                      Opinion of the Court                  21-11881
    case [was] handled the best it could have been handled” and
    emphasized that
    when I went in and pled guilty to the 31 grams and I
    was accepting responsibility for that 31 grams, I asked
    [the prosecutor] and the Magistrate Judge what I was
    being—pleading guilty to that day, . . . and [the
    prosecutor] did the calculations and he said, at this
    time, it’s 31.48 grams of methamphetamines. . . . But
    then, when we do the PSI . . . there’s all this other
    stuff that come into effect that . . . I’m still trying to
    wrap my mind around it. It’s—I don’t understand it.
    The government responded that it “never promised Mr. Risco he
    would be sentenced pursuant to some type of a[n] agreed upon
    weight. In fact, [he] rejected plea agreements where the
    government did agree upon a weight.” Risco clarified his
    objection, explaining
    I wasn’t questioning [the Magistrate Judge’s]
    judgment [at the change-of-plea hearing] or his
    questioning at all. . . . [The] only thing that I had a[n]
    issue—that I was questioning period on the whole
    thing was the act of the word relevant conduct.
    At the time I pled guilty, I was unaware of relevant
    conduct. It wasn’t until the [PSI] came out after I
    spoke with [the Magistrate Judge] and took my guilty
    plea that the relevant conduct came about and that’s
    when [he] had to start wrapping [his] mind around it.
    I’m not trying to back out or downplay any of that or
    USCA11 Case: 21-11881            Date Filed: 06/02/2022         Page: 7 of 10
    21-11881                   Opinion of the Court                               7
    say—and then [my counsel] did finally explain the
    relevant conduct to me later on after that.
    My only thing was just about how there’s a lot of
    things that I did request [of counsel] that I didn’t get
    or that things that did come up that I haven’t seen.
    (emphasis added). The district court imposed concurrent
    sentences of 235 months’ imprisonment for each count. This
    appeal followed.
    II.     Discussion
    Risco argues that his plea was not knowing and voluntary
    because it is clear from the record that he was not informed (and
    that he did not understand) the consequences of his plea—namely,
    that he could be sentenced based on a larger amount of drugs than
    what he admitted to at the change-of-plea hearing.
    “When, as here, a defendant argues for the first time on
    appeal that his guilty plea was constitutionally invalid because it
    was not knowing and voluntary, we review only for plain error,
    using a four-prong inquiry.” 3 United States v. Roosevelt Coates, 
    8 F.4th 1228
    , 1235 (11th Cir. 2021); see also United States v. Moriarty,
    3
    Risco states in his initial brief that his claim is subject to de novo review.
    However, because he did not challenge the validity of his plea in the district
    court, plain error review applies. Risco’s objections at sentencing to the
    amount of drugs were insufficient to preserve his challenge to the validity of
    his plea, because they were made after the plea, he did not move to withdraw
    his plea on the ground that it was involuntary, and he stated that he was “not
    trying to back out” of his plea.
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    8                      Opinion of the Court                 21-11881
    
    429 F.3d 1012
    , 1018 & n.2 (11th Cir. 2005) (explaining that where a
    defendant fails to file a motion to withdraw his plea or otherwise
    raise his objections to the district court, we review the challenge to
    the plea for plain error). “To establish plain error, a defendant must
    show that (1) there was an error, (2) the error was plain, and (3) the
    error affects [his] substantial rights.” Roosevelt Coates, 8 F.4th at
    1235. Provided that these conditions are met, we may then
    exercise our “discretion to recognize an unpreserved error but only
    if (4) the error seriously affects the fairness, integrity or public
    reputation of judicial proceedings.” Id. (quotation omitted).
    Under plain error review, the defendant bears the burden of
    persuasion. United States v. Monroe, 
    353 F.3d 1346
    , 1349 (11th Cir.
    2003). Thus, “a 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 (2004).
    In order for a plea to be knowing and voluntary, the court
    accepting the plea must comply with Fed. R. Crim. P. 11, and, in
    particular, address three “core principles” by ensuring that: “(1) the
    guilty plea must be free from coercion; (2) the defendant
    understands the nature of the charges; and (3) the defendant must
    know and understand the consequences of his guilty plea.” United
    States v. Mosley, 
    173 F.3d 1318
    , 1322 (11th Cir. 1999) (quotation
    marks omitted). We apply a “strong presumption” that statements
    made by a defendant during his plea colloquy are true. United
    USCA11 Case: 21-11881        Date Filed: 06/02/2022     Page: 9 of 10
    21-11881               Opinion of the Court                         9
    States v. Medlock, 
    12 F.3d 185
    , 187 (11th Cir. 1994). Therefore,
    “when a defendant makes statements under oath at a plea colloquy,
    he bears a heavy burden to show his statements were false.”
    United States v. Rogers, 
    848 F.2d 166
    , 168 (11th Cir. 1988).
    Risco failed to show that the district court committed plain
    error in accepting his guilty plea. A review of the record confirms
    that the plea colloquy was thorough, complied with the
    requirements of Rule 11, and addressed the three core principles
    for a knowing and voluntary plea. In particular, the magistrate
    judge explained to Risco that the amount of drugs the government
    referenced in the plea proceeding was the amount that the
    government was prepared to prove if the case went to trial, but
    that the government was not bound by this amount at sentencing,
    and Risco confirmed that he understood. The magistrate judge
    also informed Risco that the sentence imposed could be up to the
    statutory maximum and that even if it was higher than Risco
    expected, it would not be a basis for withdrawing his plea. Once
    again Risco confirmed that he understood. Thus, Risco’s
    contention that he was not informed and did not understand that
    his sentence could be based on a different amount of drugs than
    what he pleaded guilty to is belied by the record.
    Furthermore, even assuming there was an error, Risco failed
    to establish the error affected his substantial rights because he does
    USCA11 Case: 21-11881            Date Filed: 06/02/2022          Page: 10 of 10
    10                         Opinion of the Court                        21-11881
    not assert that, but for the alleged error, he would not have pleaded
    guilty. Accordingly, we affirm.4
    AFFIRMED.
    4
    After filing his initial counseled brief, Risco, through counsel, filed a notice
    of supplemental authority citing the Tenth Circuit’s then-recent decision in
    United States v. Wilson, 
    17 F.4th 994
    , 1002–04 (10th Cir. 2021), which held
    that personal use quantities of drugs do not qualify as relevant conduct for
    purposes of the Sentencing Guidelines, unless the drugs are connected to the
    offense of conviction. Risco points out that he made a similar argument at
    sentencing, and he urges us to adopt the Tenth Circuit’s ruling. Risco,
    however, abandoned this issue by failing to raise it in his initial brief. United
    States v. Ardley, 
    242 F.3d 989
    , 990 (11th Cir. 2001). And a party cannot use a
    notice of supplemental authority to raise a new issue that was not briefed
    initially. United States v. Nealy, 
    232 F.3d 825
    , 830 (11th Cir. 2000). Moreover,
    even if the issue was properly before us, it is squarely foreclosed by binding
    precedent, which we are required to follow unless and until it is overruled by
    this Court sitting en banc or the Supreme Court. See United States v.
    Antonietti, 
    86 F.3d 206
    , 209 (11th Cir. 1996) (holding that drugs intended for
    personal use are properly considered by district court in determining base
    offense level under the guidelines).