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United States v. Michael Williams , 455 F. App'x 468 ( 2011 )


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  •      Case: 10-10666     Document: 00511706335         Page: 1     Date Filed: 12/23/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
December 23, 2011
No. 10-10666
Summary Calendar                        Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MICHAEL GENE WILLIAMS,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:09-CR-36-1
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM:*
Michael Gene Williams appeals his guilty plea convictions for being a felon
in possession of a firearm (count one), possession of cocaine base with intent to
distribute (count two), and possession of a firearm in furtherance of a drug-
trafficking offense (count three). He argues that his guilty plea was not knowing
and voluntary because the magistrate judge did not advise him of the correct
statutory maximum sentence for counts one and two. Because Williams did not
raise this issue in the district court, review is limited to plain error. See Puckett
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-10666     Document: 00511706335     Page: 2   Date Filed: 12/23/2011
No. 10-10666
v. United States,
    129 S. Ct. 1423
    , 1429 (2009). The Government has filed a
motion to dismiss or summarily affirm, and to remand for correction of the
judgment, or alternatively for an extension of time to file a brief.
At rearraignment at the magistrate judge’s request, the prosecutor advised
Williams that the statutory maximum sentence for count one was life
imprisonment; the actual statutory maximum sentence was 20 years. Because
Williams’s actual 120-month sentence for count one was less than the life
imprisonment term of which he was advised at rearraignment, he has not shown
that the district court’s error affected his decision to plead guilty to count one.
See United States v. Williams,
    120 F.3d 575
    , 578 (5th Cir. 1997); United States
v. Pierce,
    5 F.3d 791
    , 793 (5th Cr. 1993). Although the magistrate judge also
incorrectly advised Williams that the statutory maximum sentence for count two
was 20 years, Williams was aware of the correct statutory maximum sentence
because the plea agreement, which he read and signed prior to rearraignment,
correctly stated that the statutory maximum sentence for count two was 40
years. Moreover, as in United States v. Vasquez-Bernal,
    197 F.3d 169
    , 170-71
(5th Cir. 1999), the Presentence Report, which Williams reviewed and discussed
with counsel, correctly stated that the statutory maximum sentence for count
two was 40 years; Williams received a reduction for acceptance of responsibility;
and he did not allege or offer any evidence to show that he would not have
pleaded guilty had he been advised of the correct statutory maximum sentence.
Because there is no evidence that the magistrate judge’s error affected
Williams’s decision to plead guilty to these counts, Williams has not shown that
the error affected his substantial rights. See Vasquez-Bernal,
    197 F.3d at 171
    ;
see also Williams,
    120 F.3d at 578
    ; Pierce,
    5 F.3d at 793
    ; Puckett,
    129 S. Ct. at 1429
    .
Williams argues that the judgment of conviction incorrectly states that he
was convicted of violating
    18 U.S.C. § 924
    (e) and argues that the case should be
remanded for correction of the judgment to reflect that he was convicted under
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Case: 10-10666   Document: 00511706335     Page: 3   Date Filed: 12/23/2011
No. 10-10666
§ 924(a)(2). Because the reference to § 924(e) was a clerical error and the
Government concurs that the judgment should be corrected, the case is
remanded for correction of the error. See FED. R. CRIM. P. 36; see also
    28 U.S.C. § 2106
    ; United States v. Powell,
    354 F.3d 362
    , 371-72 (5th Cir. 2003).
Williams’s argument that he should be resentenced under the Fair
Sentencing Act is barred by his waiver of his right to appeal, which Williams
concedes was knowing and voluntary and, therefore, enforceable. Because the
Government seeks to enforce the waiver and none of the waiver’s exceptions are
applicable, Williams’s claim is barred by the appeal waiver. See United States
v. McKinney,
    406 F.3d 744
    , 746 (5th Cir. 2005).
AFFIRMED AS MODIFIED; MOTION GRANTED; REMANDED FOR
CORRECTION OF JUDGMENT.
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