United States v. Peyton ( 2021 )

Case: 18-40554 Document: 00515753320 Page: 1 Date Filed: 02/23/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 18-40554 February 23, 2021
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Michael David Peyton,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:17-CR-69-2
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Stephen A. Higginson, Circuit Judge:*
Michael David Peyton pleaded guilty to one count of conspiracy to
possess with intent to distribute 500 grams or more of a mixture or substance
containing methamphetamine, and the district court sentenced him to 292
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 18-40554 Document: 00515753320 Page: 2 Date Filed: 02/23/2021
No. 18-40554
months in prison and 10 years of supervised release. We AFFIRM in part
and REMAND for further proceedings.
I
First, Peyton argues that his plea was not voluntarily and knowingly
entered because the district court violated Federal Rule of Criminal
Procedure 11 by failing to advise him of the correct mandatory minimum
sentence. During the plea hearing, the magistrate judge told Peyton that he
faced a mandatory minimum sentence of 10 years in prison (and five years of
supervised release). That was incorrect. Because of a sentence enhancement
for a prior conviction, Peyton actually faced a mandatory minimum sentence
of 20 years in prison.
“Because a guilty plea involves the waiver of several constitutional
rights, it must be made intelligently and voluntarily. Rule 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) (internal citation omitted). Under Rule
11(b)(1)(I), a district court must advise a defendant of “any mandatory
minimum penalty.” Fed. R. Crim. P. 11(b)(1)(I).
Although Peyton objected at sentencing to the applicability of the
sentence enhancement, he never objected to the magistrate judge’s plea
colloquy as erroneous under Rule 11 nor did he seek to withdraw his plea. He
thus raises his Rule 11 objection for the first time on appeal. We therefore
review for plain error. United States v. Dominguez, 542 U.S. 74, 76 (2004);
United States v. Castro-Trevino, 464 F.3d 536, 541 (5th Cir. 2006) (“Because
Castro–Trevino objects to the Rule 11 error for the first time on appeal, this
court must review for plain error only.”). To prevail on plain error review,
Peyton must show that “(1) the district court committed Rule 11 error, (2)
the error was plain, (3) there is a reasonable probability that but for the error,
2
Case: 18-40554 Document: 00515753320 Page: 3 Date Filed: 02/23/2021
No. 18-40554
he would not have pleaded guilty, and (4) the error seriously affected the
fairness, integrity, or public reputation of the proceedings.” United States v.
Alvarado-Casas, 715 F.3d 945, 953 (5th Cir. 2013).
The Government does not dispute that the magistrate judge
committed clear error under Rule 11 by incorrectly telling Peyton that a lower
mandatory minimum applied. See id. at 954. Instead, the Government
contends that this error did not affect Peyton’s substantial rights—that there
is not a reasonable probability that, but for the error, Peyton would not have
pleaded guilty. See Dominguez, 542 U.S. at 76. We agree.
“[A] reviewing court may consult the whole record when considering
the effect of any error on substantial rights.” United States v. Vonn, 535 U.S.
55, 59 (2002). Here, the record shows that Peyton was aware, well before he
was sentenced, that he faced a mandatory minimum sentence of 20 years in
prison. Both the initial and final Presentence Investigation Report (“PSR”)
clearly and repeatedly stated the correct mandatory minimum sentence of 20
years imprisonment. At sentencing, Peyton’s attorney informed the court
that he had fully explained the PSR to Peyton and Peyton confirmed that he
understood the PSR. Furthermore, in a pro se letter filed after the initial PSR
was filed, Peyton wrote directly to the court and explained that he was aware
of the sentence enhancement but that he did not think his conduct
“necessitate[d] a minimum of 20 years in prison.”
Despite learning that he in fact faced a mandatory minimum of 20
years imprisonment rather than the 10 years that the magistrate judge
described at the plea hearing, Peyton never expressed that he wished to
change or withdraw his plea, or that his decision to forego trial hinged on his
understanding that he faced only a ten-year minimum prison sentence.
Indeed, to the contrary, Peyton wrote in his pro se letter that “[i]t’s never
been my intention to go to trial,” and that “I will accept my sentence no
3
Case: 18-40554 Document: 00515753320 Page: 4 Date Filed: 02/23/2021
No. 18-40554
matter what it is . . . .” This record evidence suggests that Peyton’s decision
to plead guilty and forgo trial was not impacted by the magistrate judge’s Rule
11 error. Therefore, Peyton cannot demonstrate plain error here. See
Alvarado-Casas, 715 F.3d at 954.
II
Second, Peyton argues that the district court abused its discretion in
mandating in its written judgment that as special conditions of his supervised
release, he must provide the probation office with access to requested
financial information for the purpose of monitoring employment; that he
participate in and pay for drug testing and treatment; and that he participate
in and pay for psychiatric, psychological, or mental-health treatment
programs. He urges that the conditions should be removed from the written
judgment because the district court did not orally pronounce them at his
sentencing. The district court included these conditions of supervised release
in its written judgment but did not explicitly pronounce them orally at
sentencing, which implicates the oral-pronouncement requirement. See
United States v. Diggles, 957 F.3d 551, 556-57 (5th Cir. 2020) (en banc), cert.
denied, 2020 WL 6551832 (U.S. Nov. 9, 2020) (No. 20-5836). In lieu of
reciting verbatim each non-mandatory condition of supervised release at
sentencing, a district court can “orally adopt a document (typically a PSR)
that lists the proposed conditions, so long as ‘the defendant had an
opportunity to review it with counsel’ and the oral adoption is made ‘when
the defendant is in court.’” United States v. Omigie, 977 F.3d 397, 406 (5th
Cir. 2020) (quoting Diggles, 957 F.3d at 561 n.5).
Although the district court explained that Peyton had to comply with
the conditions set forth in his PSR, which the district court orally adopted,
the special conditions were listed in a separate “supervision conditions
recommendation” attached to the PSR. Although the recommendation has
4
Case: 18-40554 Document: 00515753320 Page: 5 Date Filed: 02/23/2021
No. 18-40554
the same document number as the PSR, it is unclear whether the
recommendation was shared with Peyton and his counsel, thus affording
them an opportunity to review it prior to sentencing. See Omigie, 977 F.3d at
407 & n.47. We therefore remand for the district court to determine whether
the “supervision conditions recommendation” was disclosed to Peyton as
part of his PSR. If it was not, the court must conform the written judgment
to its oral pronouncement by removing the conditions from the judgment. See
id.
III
For the foregoing reasons, the judgment is AFFIRMED IN PART.
We REMAND to the district court for the limited purpose of ensuring that
Peyton’s conditions of supervised release are consistent with the district
court’s oral pronouncement at sentencing.
5