United States v. Kennedy , 83 F. App'x 618 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 10, 2003
Charles R. Fulbruge III
Clerk
No. 03-30434
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DWAYNE KENNEDY, also known as Tater,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 02-CR-302-4-B
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Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Dwayne Kennedy appeals his guilty-plea conviction for
one count of conspiracy to possess and distribute cocaine and
marijuana and one count of possession of a firearm in connection
with a drug offense. Kennedy argues that the district court’s
erroneous advice concerning the maximum sentence on his firearm
possession offense invalidated his guilty plea.
Because Kennedy failed to object to the district court’s
Rule 11 colloquy, the issue is reviewed for plain error.
*
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that this opinion should not be published and is not precedent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.
No. 03-30434
-2-
United States v. Vonn, 535 U.S. 55, 58-59 (2002). Under the
plain-error standard of review, “reversal is not required unless
there is (1) an error; (2) that is clear or plain; (3) that
affects the defendant’s substantial rights; and (4) that seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” United States v. Vasquez, 216 F.3d 456, 459
(5th Cir. 2000).
The district court misadvised Kennedy that the maximum
penalty on the firearm possession count was five years’
imprisonment. The stated term was in fact the mandatory
minimum term of imprisonment. See 18 U.S.C. § 924(c)(1)(A)(i).
Although the district court erred, Kennedy fails to establish
that the error affected his substantial rights. See Vasquez,
216 F.3d at 459. At rearraignment, Kennedy confirmed that
his maximum sentencing exposure was life imprisonment on the
conspiracy count and that any sentence imposed on the firearm
possession count would run consecutively to any other sentence
imposed. The district court imposed only a 120-month sentence
on the conspiracy count and a 60-month sentence on the firearm
possession count. See United States v. Cuevas-Andrade, 232 F.3d
440, 444 (5th Cir. 2000). Kennedy has not established that the
district court’s error materially affected his guilty plea.
See United States v. Reyes, 300 F.3d 555, 558 (5th Cir. 2002).
Accordingly, the judgment of the district court is AFFIRMED.