United States v. Jerry Reed ( 2017 )

Case: 16-10500 Document: 00513917430 Page: 1 Date Filed: 03/20/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-10500 FILED
Summary Calendar March 20, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JERRY K. REED,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CR-481-6
Before BARKSDALE, HAYNES and HIGGINSON, Circuit Judges.
PER CURIAM: *
Jerry K. Reed pleaded guilty to conspiring to unlawfully distribute
hydrocodone, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(E)(i), and
was sentenced to, inter alia, 216 months’ imprisonment. In addition to the
drug-distribution conspiracy charge, Reed was also indicted for: brandishing
a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii); and conspiring to brandish a firearm during a drug-
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 16-10500
trafficking crime, in violation of § 924(o). In exchange for his written
agreement pleading guilty to the distribution charge, the firearm-related
charges were dismissed on the Government’s motion. Reed claims, for the first
time on appeal, his guilty plea was unknowing and should be vacated because
the district court failed to comply with the requirements of Federal Rule of
Criminal Procedure 11.
And, Reed concedes, because he did not raise these issues in district
court, review is only for plain error. E.g., United States v. Broussard, 669 F.3d
537, 546 (5th Cir. 2012). Under that standard, Reed 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”. Id.
The court failed to inform Reed that: the Government could use any of
his statements under oath in a prosecution for perjury; he had a right to
counsel, appointed by the court if necessary, at every stage of the proceeding;
and the court was obliged to consider the 18 U.S.C. § 3553(a) sentencing
factors. See Fed. R. Crim. P. 11(b)(1)(A), (D), (M). Reed, however, has not
shown that any of these Rule 11 failures affected his substantial rights because
he has not shown “a reasonable probability that, but for the error[s], he would
not have entered the [guilty] plea”. See United States v. Dominguez Benitez,
542 U.S. 74, 83 (2004).
Reed neither asserts he is being threatened with a perjury charge, nor
articulates how this error prejudiced his guilty plea. Therefore, the district
court’s omission of the perjury warning is harmless and does not require
reversal. See United States v. Law, 633 F.2d 1156, 1157 (5th Cir. 1981). Reed
likewise offers no explanation for how his lack of notice regarding his right to
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Case: 16-10500 Document: 00513917430 Page: 3 Date Filed: 03/20/2017
No. 16-10500
court-appointed counsel at all stages of his case and the court’s required
consideration of the § 3553(a) sentencing factors affected his decision to plead
guilty.
In short, Reed’s conclusory assertion that there is a reasonable
probability he would not have pleaded guilty but for the Rule 11 errors is
insufficient to establish the requisite reversible plain error. See Dominguez
Benitez, 542 U.S. at 80–85; United States v. Meza, 642 F. App’x 332, 333–34
(5th Cir. 2016).
AFFIRMED.
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