United States v. Leon King

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPT 9, 2008
No. 08-10919
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 05-00355-CR-T-17-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEON KING,
a.k.a. PK,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 9, 2008)
Before ANDERSON, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Leon King appeals his conviction for possession with intent to distribute
five grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1),(b)(1)(A)(iii).
King pleaded guilty to one count of possession with intent to distribute
cocaine in exchange for the dismissal of both conspiracy of the same and three
additional counts of possession with intent to distribute. The Government also
agreed to withdraw an § 851 Information that could have lead to King’s serving a
life sentence, and the Government also stated that it would agree to an acceptance
of responsibility reduction.
At sentencing, the district court sentenced King to the Sentencing
Guidelines minimum of 188 months’ imprisonment. Following the sentencing, the
district court ordered forfeiture of “any and all assets and property, or portions
thereof, subject to forfeiture, which are in the possession or control of the
defendant or the defendant’s nominees.” The court did not, however, follow any
of the proper forfeiture procedures, nor did the Government seek to obtain
forfeiture. King did not object to the forfeiture order.1
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Almost one year after he was sentenced, King filed a 28 U.S.C. § 2255 motion to
vacate, set aside, or correct his sentence. In the motion, King claimed ineffective assistance of
counsel because his lawyer refused to file his appeal. The district court granted King’s motion
because it determined that an out-of-time appeal was warranted. Thus, the court vacated King’s
prior sentence and reimposed King’s 188-month sentence.
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On appeal, King asserts that the district court erred in two ways: (1) that the
district court did not sufficiently comply with Federal Rule of Criminal Procedure
11 because it (a) failed to advise King of the consequences of pleading guilty,
namely that his personal property was subject to forfeiture; (b) improperly
participated in the plea negotiations by telling King “it is the court’s custom . . . to
sentence you at the low end of the guideline range, whatever that is;” (c) failed to
advise King that he could be sentenced as a career offender; and (d) failed to
advise King that his sentence could be based on more drugs than the one count to
which he pleaded guilty; and (2) that the district court failed to comply with Rule
32.2 because it did not identify which assets were subject to forfeiture before it
signed a forfeiture order.
Based upon a review of the record, we conclude that King’s arguments are
without merit. First, King failed to object to the Rule 11 errors during the plea
colloquy; therefore, we review them for plain error. United States v. Monroe,
353 F.3d 1346, 1349 (11th Cir. 2003).
Under plain error review, the defendant has the burden to show that there is
(1) error (2) that is plain and (3) that it affects substantial rights. Id. The Supreme
Court has held that in order to meet the third prong, a “defendant who seeks
reversal of his conviction following a guilty plea on the ground that the district
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court committed plain error under Rule 11 must show a reasonable probability
that, but for the error, he would not have entered the plea.” United States v.
Dominquez Benitez, 542 U.S. 74, 83 (2004). Additionally, once the defendant has
established the first three prongs, the reviewing court may then exercise its
jurisdiction and correct the error, but only if it “seriously affects the fairness,
integrity, or public reputation of the judicial proceedings.” United States v. Olano,
507 U.S. 725, 732 (1993).
Here, assuming without deciding that the district court erred in its Rule 11
colloquy, King has not demonstrated (nor has he even argued) that but-for the
alleged Rule 11 errors he would not have pleaded guilty. Similarly, nothing in the
record indicates that he would not have pleaded guilty. Indeed, there was
overwhelming evidence of King’s guilt and, as part of the plea, the Government
withdrew a § 851 Information which could have resulted in King’s serving a life
sentence. He, therefore, fails to meet his burden on plain error review.
With regard to his second contention regarding the forfeiture order, King
also fails. Again, we review this alleged error under the plain error standard. See
United States v. Mangaroo, 504 F.3d 1350, 1353 (11th Cir. 2007). As discussed
above, the third prong of the plain error analysis requires King to show that the
error affected his substantial rights. Although the district court failed to follow the
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procedures set forth in Rule 32.2 (including identifying the specific property to be
forfeited), no property has been forfeited and the Government has not sought
forfeiture. Thus, King has suffered no prejudice.
Accordingly, we AFFIRM.
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