United States v. Donald Lee Phelps ( 2014 )

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[DO NOT PUBLISH]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)
Case: 13-13329 Date Filed: 02/10/2014 Page: 2 of 4
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, 710 F.3d 1234, 1240 (11th Cir.), cert. denied, 134 S. Ct.
304 (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, 398 F.3d
1291, 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. Id. We may review the
entire record to determine whether any error affected a defendant’s substantial
rights. United States v. Moriarty, 429 F.3d 1012, 1020 n.4 (11th Cir. 2005). When
2
Case: 13-13329 Date Filed: 02/10/2014 Page: 3 of 4
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, 542 U.S. 74, 83 (2004).
A guilty plea must be given knowingly and voluntarily. United States v.
Brown, 117 F.3d 471, 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); Moriarty, 429 F.3d at 1019. 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. Moriarty, 429 F.3d
at 1019-20.
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, 353 F.3d 1346, 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. Id. at
1354. 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
3
Case: 13-13329 Date Filed: 02/10/2014 Page: 4 of 4
F.3d 1342, 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, 579 F.3d 1233, 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. Bonilla, 579 F.3d at 1239. 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 Benitez, 542 U.S. at 83.
AFFIRMED.
4