United States v. Theodore Brewster ( 2019 )

Case: 18-50840 Document: 00515190426 Page: 1 Date Filed: 11/07/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-50840 November 7, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
THEODORE MICHAEL BREWSTER,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:17-CR-315-1
Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Theodore Michael Brewster pleaded guilty pursuant to a plea agreement
to possession with intent to distribute less than 500 grams of cocaine and was
sentenced within the guidelines range to 51 months of imprisonment, three
years of supervised release, a $15,000 fine, and a $100 special assessment. On
appeal, he argues his guilty plea was not knowing and voluntary because the
district court did not advise him of the true nature of the charge against him.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-50840 Document: 00515190426 Page: 2 Date Filed: 11/07/2019
No. 18-50840
In particular, he contends that he was not advised that his sentence would be
based on his relevant conduct, including additional drug quantities that were
not listed in the factual basis.
As Brewster concedes, review is limited to plain error because he did not
raise this issue in the district court. See United States v. Alvarado-Casas, 715
F.3d 945, 953 (5th Cir. 2013). To show plain error, the defendant must show a
forfeited error that is clear or obvious and that affects his substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing,
this court has the discretion to correct the error, and that discretion “ought to
be exercised only if the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation marks, brackets,
and citation omitted).
The magistrate judge who conducted the rearraignment advised
Brewster of the nature of the offense and the statutory maximum sentence,
and Brewster stated that he understood. The judge expressly advised him that
the probation officer would prepare a report calculating his range of
punishment based on the Sentencing Guidelines, including relevant conduct,
and Brewster stated that he understood. Because Brewster was aware of the
nature of the charges, the statutory maximum punishment, and the fine for
the offense, but nevertheless pleaded guilty, his guilty plea was knowing and
voluntary. See United States v. Scott, 857 F.3d 241, 245 (5th Cir. 2017); United
States v. Washington, 480 F.3d 309, 315 (5th Cir. 2007). Brewster has not
shown that the district court plainly erred by not advising him that his
sentence could be based on additional drug quantities not listed in the factual
basis. See Scott, 857 F.3d at 245; Washington, 480 F.3d at 315.
AFFIRMED.
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