United States v. Ryan Winner ( 2016 )

Case: 16-10028 Document: 00513759194 Page: 1 Date Filed: 11/14/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-10028
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
November 14, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
RYAN ANTHONY WINNER,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:15-CR-13-1
Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Ryan Anthony Winner pleaded guilty to two counts of sexually exploiting
a minor for the purpose of creating child pornography, in violation of 18 U.S.C.
§ 2251(a). He was sentenced, inter alia, to consecutive terms of 30 years’
imprisonment, with concurrent terms of 15 years’ supervised release. He
contends the district court’s admonishments regarding the nature of the
offense, the minimum and maximum punishments applicable to each count,
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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No. 16-10028
the nature of supervised release, and, even though he is a United States
citizen, the immigration consequences of his plea were erroneous and warrant
relief. He further claims the special condition of supervised release
prohibiting, inter alia, contact with the victim is plainly erroneous because it
is unlawfully vague and fails to provide adequate notice of the prohibited
conduct. Finally, Winner asserts the sentence pronounced orally by the court
conflicts with the written judgment and statement of reasons attached to it.
Federal Rule of Criminal Procedure 11 “ensures that a guilty plea is
knowing and voluntary by requiring the district court to follow certain
procedures before accepting such a plea”. United States v. Reyes, 300 F.3d 555,
558 (5th Cir. 2002). Because Winner failed in district court to object to the
Rule 11 plea colloquy, review is only for plain error. United States v. Vonn, 535
U.S. 55, 59 (2002). Under that standard, Winner must show a forfeited plain
(clear or obvious) error that affected his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct
the reversible plain error, but should do so only if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings”. United States
v. Olano, 507 U.S. 725, 736 (1993).
Together, the factual resume, Rule 11 colloquy, and presentence
investigation report (PSR) accurately informed Winner of: the elements of the
offense; the minimum and maximum statutory punishments that applied to
each count (including the total sentence that could be imposed if the court
ordered the sentences to be served consecutively); the nature of supervised
release and consequences of any revocation; and the role of the Sentencing
Guidelines. Notably, Winner did not move to withdraw his guilty plea upon
receipt of the PSR, which stated he could be subject to a total term of
imprisonment of 60 years. Thus, any error as to the Rule 11 colloquy regarding
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the nature of the offense, the applicable punishments, or the nature of
supervised release is harmless. See United States v. Alvarado-Casas, 715 F.3d
945, 954-55 (5th Cir. 2013); United States v. Cuevas-Andrade, 232 F.3d 440,
444 (5th Cir. 2000) (district court’s failure to personally address the defendant
about the nature of the charges and the statutory punishments was harmless
because the required information was accurately set forth in the plea
agreement and attached factual resume).
Further, Winner fails to cite any evidence in the record establishing he
would have not pleaded guilty but for the Rule 11 errors he alleges.
Accordingly, Winner fails to demonstrate any of the claimed errors affected his
substantial rights. See United States v. Molina, 469 F.3d 408, 412 (5th Cir.
2006).
Regarding the special condition of supervised release prohibiting contact
with the victim, Winner makes no contentions regarding how the claimed error
affects his substantial rights or why our court should exercise our discretion to
correct it. Accordingly, by failing to address the third and fourth prongs of the
plain-error standard, he waived this contention. United States v. Charles, 469
F.3d 402, 408 (5th Cir. 2006) (inadequately briefed issues are deemed waived).
In any event, Winner maintains the denial of fair notice, standing alone,
warrants the exercise of this court’s discretion. We have rejected similar
arguments, however, on the grounds that such an “approach would collapse
the fourth prong into the first three”. United States v. Rivera, 784 F.3d 1012,
1018 (5th Cir. 2015).
Finally, we discern no conflicts between the orally-pronounced sentence
and the judgment with attached statement of reasons. United States v.
Bigelow, 462 F.3d 378, 380−81 (5th Cir. 2006) (no conflict if the written
judgment merely clarifies an oral pronouncement). The record demonstrates:
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the court intended to impose a sentence of 30 years on each count; the special
condition of supervised release applies only to the minor victim identified in
the indictment; and the statement of reasons merely clarifies the court’s oral
explanation for the sentence imposed. Nevertheless, there is a clerical error in
the judgment: it erroneously states Winner’s two 360-month sentences will
run concurrently, rather than consecutively, to total 720 months.
Accordingly, we order a LIMITED REMAND for the purpose of
correcting this clerical error in the judgment. See Fed. R. Crim. P. 36. In all
other respects, the judgment is AFFIRMED.
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