PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 20 2000
THOMAS K. KAHN
Nos. 94-8073 and 94-8077 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 92-00141-1-CR-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID GEORGE TYNDALE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 20, 2000)
Before TJOFLAT and BARKETT, Circuit Judges, and RONEY, Senior Circuit Judge.
PER CURIAM:
David George Tyndale appeals convictions in two separate drug cases. In the
first, known as the Georgia case, he was convicted by a jury on two counts of
conspiracy and possession of cocaine with intent to distribute. See
21 U.S.C. §§
841(a)(1), 846. In the second, known as the North Carolina case, which had been
transferred to the Northern District of Georgia pursuant to Rule 20 of the Federal
Rules of Criminal Procedure, he pled guilty to one drug count under
21 U.S.C. §§
841(a)(1) and 846. Sentencing on both cases was addressed during one hearing. He
was sentenced to 240 months on each of the three counts to run concurrently. He
alleges ineffective assistance of counsel for failure to raise an illegal search issue in
the Georgia case. In the North Carolina case, he contends his guilty plea was not
voluntary. We affirm the convictions in both cases.
The Georgia Case. Appeal 94-8073.
On August 15, 1989, in Clayton County, Georgia, state narcotics agents arrested
Tyndale during a search pursuant to warrant for drugs in a co-defendant’s apartment
where Tyndale was present. Later charged with possession with the intent to
distribute cocaine, conspiracy, and using and carrying a firearm during the
commission of a drug offense, Tyndale was convicted by a jury on two of the three
counts. Tyndale argues that he was denied his sixth amendment right to effective
assistance of counsel, because his trial attorney failed to move to suppress certain
evidence.
2
Generally, claims of ineffective assistance of counsel are not considered for the
first time on direct appeal. See United States v. Arango,
853 F.2d 818, 823 (11th Cir.
1988). Although an exception exists in cases where the record is sufficiently
developed, see United States v. Camacho,
40 F.3d 349, 355 (11th Cir. 1994), the
record is not complete enough for us to rule on Tyndale’s claim. Therefore we affirm
this conviction, without ruling on the ineffective assistance of counsel claim.
The North Carolina Case. Appeal No. 94-8077
While free on bond pending trial in the Georgia case, Tyndale was arrested in
Charlotte, North Carolina for another drug offense on April 3, 1993. After the three
count indictment that followed was transferred from North Carolina to the Northern
District of Georgia, Tyndale pled guilty to one count of conspiracy to possess cocaine
with the intent to distribute.
Tyndale argues that his guilty plea was not “voluntary, knowing and
intelligent,” in violation of the Fifth Amendment. He contends that at the plea
hearing, he was not advised that the ten year minimum sentence to which he was
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subject would be automatically enhanced pursuant to
18 U.S.C. § 31471 and USSG
§ 2J1.72 because he
committed the North Carolina offense while released on bond awaiting trial on the
Georgia offenses.
Rule 11(c)(1) of the Federal Rules of Criminal Procedure provides that before
accepting a guilty plea, the court must, in part, “inform the defendant of, and
determine that the defendant understands, . . . the mandatory minimum penalty
provided by law, if any, and the maximum possible penalty provided by law.” When
the defendant is informed of a mandatory minimum and maximum statutory sentence
1
18 U.S.C. § 3147 states:
A person convicted of an offense committed while released under this chapter
shall be sentenced, in addition to the sentence prescribed for the offense to-
(1) a term of imprisonment of not more than ten years if the offense
is a felony; or
(2) a term of imprisonment of not more than one year if the offense
is a misdemeanor.
A term of imprisonment imposed under this section shall be consecutive to any other
sentence of imprisonment.
2
USSG § 2J1.7 states:
If an enhancement under
18 U.S.C. § 3147 applies, add 3 levels to the offense
level for the offense committed while on release as if this section were a specific
offense characteristic contained in the offense guidelines for the offense
committed while on release.
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at his plea colloquy and sentenced within that range, we have determined that the
failure to advise of a Sentencing Guidelines sentencing range is harmless error, as
long as the defendant knew that the Sentencing Guidelines existed and that they would
affect his sentence. See United States v. Mosley,
173 F.3d 1318, 1327-28 (11th Cir.
1999); United States v. Casallas,
59 F.3d 1173, 1180 (11th Cir. 1995).
In the district court, Tyndale did not raise an objection to the plea proceedings,
nor did he move to withdraw the plea. Therefore, we review the district court’s
compliance with Rule 11 for plain error, which is error that is clear or obvious and
affects substantial rights. See United States v. Quinones,
97 F.3d 473, 475 (11th Cir.
1996). A defendant’s substantial rights are affected if the district court fails to satisfy
any of the “core objectives” of Rule 11: (1) ensuring that the guilty plea is free of
coercion; (2) ensuring that the defendant understands the nature of the charges against
him; and (3) ensuring that the defendant is aware of the direct consequences of the
guilty plea. See Quinones,
97 F.3d at 475. Plain error analysis differs from harmless
error analysis in that the defendant bears the burden of persuasion with respect to
prejudice. See United States v. Olano,
507 U.S. 725, 734-35 (1993).
With regard to § 2J1.7 of the Sentencing Guidelines, the district court
confirmed during the plea colloquy that Tyndale knew that the Sentencing Guidelines
5
existed and would affect his sentence. By so doing, the district court discharged its
responsibility under Rule 11(c) with respect to the effect of the Guidelines on
Tyndale’s sentencing range. See Mosley, 173 F.3d at 1327-28; Casallas,
59 F.3d at
1180.
The question, therefore, becomes whether Tyndale was informed of the
mandatory minimum statutory sentence, and if not, whether that failure amounted to
plain error. Although § 3147 is a sentence enhancement statute, it does not specify
a minimum enhancement: it requires only that Tyndale “shall” be sentenced to an
additional prison term of “not more than” ten years. Compare
18 U.S.C. § 3147
(1994) (current statute; no express minimum enhancement), with
18 U.S.C. § 3147
(1988) (former version of statute; providing for enhancement of “not less than two
years and not more than ten years”) (emphasis added); see also USSG § 2J1.7,
comment. (backg’d) (noting that although § 3147 provides for a sentence
enhancement, “there is no requirement as to any minimum term”). Even if the phrase
“shall be sentenced” means that at least some enhancement is required by § 3147, the
minimum enhancement required by § 3147 would be negligible. A single additional
day of imprisonment or less would apparently suffice to comply with the statute.
Because any enhancement of Tyndale’s minimum statutory sentence required by §
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3147 would be de minimus, the failure of the district court to advise Tyndale of any
such enhancement had no material effect on the third “core objective” of Rule 11:
ensuring that the defendant is aware of the direct consequences of the guilty plea.
There was no effect on Tyndale’s “substantial rights.” See Quinones,
97 F.3d at 475.
We conclude that there was no plain error in not notifying Tyndale at the plea
hearing of the effect of § 2J1.7 and § 3147 on his minimum sentence. See United
States v. Bozza,
132 F.3d 659, 661-62 (11th Cir. 1998) (no obligation to advise
defendant at plea hearing of sentence enhancement pursuant to § 3417 and § 2J1.7).
We note that the 240-month sentence actually received runs concurrently with the
same sentence on each of the two Georgia counts.
Tyndale also contends that the guilty plea was invalid because the presentence
report had not been completed at the time of his plea. USSG § 6B1.1(c) requires the
court to “defer its decision to accept or reject . . . any plea agreement pursuant to Rules
11(e)(1)(A) and 11(e)(1)(C) until there has been an opportunity to consider the
presentence report, unless a report is not required under § 6A1.1.” Although that
guideline, in some circumstances, may require the court to defer its decision whether
or not to accept the plea agreement until after having considered the presentence
report, it does not say that the court must defer its decision whether to accept the plea
7
until that time. Cf. United States v. Hyde,
520 U.S. 670, 674 (1997) (rejecting position
that “equated acceptance of guilty plea with acceptance of plea agreement”).
We affirm this conviction based on Tyndale’s guilty plea.
AFFIRMED.
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