United States v. Carlington Nevardo Lewis, Danny Lewis

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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Nos. 13-12970; 13-12971
Non-Argument Calendar
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D.C. Docket No. 1:11-cr-20745-UU-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLINGTON NEVARDO LEWIS,
a.k.a. Nev,
DANNY LEWIS,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
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(June 3, 2014)
Before WILSON, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
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Carlington Nevardo Lewis appeals his conviction for conspiracy to tamper
with a witness, 18 U.S.C. § 371, and his brother, Danny Lewis, appeals his
conviction for possession of a firearm and ammunition by a felon, id. § 922(g)(1).
The Lewises challenge their pleas of guilty, which they entered after a jury
acquitted them of some charges in their second superceding indictment and before
a second trial commenced on their remaining charges. The Lewises argue, for the
first time, that the district court ignored the “core concerns” of Federal Rule of
Criminal Procedure 11 when it accepted their guilty pleas, and Danny also argues
that he was entitled to a hearing on his motions to discharge his trial counsel and to
withdraw his plea of guilty. We affirm the Lewises’ convictions and vacate the
judgment against Danny and remand with instructions to correct a clerical error.
Danny and Carlington argue, for the first time, that the district court violated
its duties to ensure that their pleas were free from coercion and were made with an
understanding of the nature of their charges and the consequences of their pleas,
see Fed. R. Crim. P. 11, but we review these arguments only for plain error.
United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005). Plain error exists
only when there is an error that is plain and that affects substantial rights. Id. And
an error is not plain unless there is a decision by the Supreme Court or this Court
directly resolving the issue. Id. “[A] defendant who seeks reversal of [a]
conviction after a guilty plea, on the ground that the district court committed plain
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error under Rule 11, must show a reasonable probability that, but for the error, he
would not have entered the plea.” Id. at 1020 (quoting United States v. Dominguez
Benitez, 542 U.S. 74, 83, 124 S. Ct. 2333, 2340 (2004)).
The district court did not err, plainly or otherwise, in ensuring that Danny’s
and Carlington’s guilty pleas were not coerced. Danny and Carlington argue that
statements the district court made during their first trial and before commencement
of their second trial “evidenc[ed] partiality for the government” and compelled
them to plead guilty, but the statements conveyed only a warning to the Lewises
that any threat made to government witnesses could affect their sentences;
exhibited surprise at the verdicts of the jury; and exhorted the government about its
presentation of evidence. Even if we were to assume that the statements were
coercive, neither Danny or Carlington argue that they would not have pleaded
guilty had the statements not been made. See Moriarty, 429 F.3d at 1020. And the
Lewises fail to cite any authority holding that biased statements made by a trial
court preceding an offer to plead guilty can create an environment that would
coerce a defendant to change his plea from not guilty to guilty. See id.
The record reflects that Danny and Carlington were not coerced to plead
guilty. Danny and Carlington stated during their separate oral plea colloquies that
they had not been threatened, coerced, or forced “in any way” to plead guilty, and
both men admitted that they were guilty after being advised of their right to persist
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in a plea of not guilty. See United States v. Rogers, 848 F.2d 166, 168 (11th Cir.
1988) (“[W]hen a defendant makes statements under oath at a plea colloquy, he
bears a heavy burden to show his statements were false.”); United States v.
Gonzalez–Mercado, 808 F.2d 796, 800 n.8 (11th Cir. 1987) (“[T]here is a strong
presumption that the statements made during the colloquy are true.”). Although
Danny moved to withdraw his plea of guilty, he sought that relief on the ground
that trial counsel was ineffective.
Danny and Carlington argue that the district court made coercive statements
immediately before they decided to change their plea, but these arguments fail
regardless of the standard of review. Danny and Carlington argue about being
pressured to plead guilty when the district court said that it was “not going to give
[them] a lot of time” and that the parties would have to “talk and eat at the same
time,” but the district court was entitled to set a deadline for plea negotiations
when it had already seated a jury for Danny and Carlington’s second trial. See
United States v. Gamboa, 166 F.3d 1327, 1331 (11th Cir. 1999) (“[T]he
prerogative of prosecutors and defendants to negotiate guilty pleas is outweighed
by judicial discretion to control the scheduling of trial procedures in ongoing
prosecutions, plus the broad interests of docket control and effective utilization of
jurors and witnesses.” (internal quotation marks and citation omitted)). Danny
complains about the district court instructing trial counsel to “[s]it down and talk to
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your client” and later asking Danny “what are we doing,” but the district court was
entitled to inquire whether Danny would go to trial or enter a change of plea. See
United States v. Johnson, 89 F.3d 778, 783–84 (11th Cir. 1996). The district court
also did not create a coercive atmosphere when it commented that “usually when
people get arrested for petty theft, they don’t recruit their brother to kill the
informant” to explain why it mentioned during voir dire that Danny was in
possession of several guns. Carlington accuses the district court of participating in
plea agreements when it told him that he had until the next day to decide to plead
guilty, see Fed. R. Crim. P. 11(c)(1), but the district court did not suggest that
Carlington plead guilty, see Johnson, 89 F.3d at 783–84. We find nothing coercive
about the manner in which the district court conducted Danny’s and Carlington’s
change of plea hearings.
The district court did not err, plainly or otherwise, in ensuring that Danny
and Carlington understood the nature of their charges. The Lewises complain that
the district court failed to mention each element of their offenses during the change
of plea hearing, but “Rule 11(c) does not specify that a district court must list each
element of the offense seriatim,” United States v. Wiggins, 131 F.3d 1440, 1442–
43 (11th Cir. 1997). And the district court was entitled to find that Danny and
Carlington understood the charges against them because they had completed a trial
on the charges; they had high school educations; they had signed a plea agreement
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acknowledging the elements of their crimes; they had been read their charges by
the district court; they verified that they had reviewed the indictment with their
attorneys and that they understood and agreed to “each and every fact” in their
factual proffers; and they were given the opportunity to ask questions about their
charges. See id.The district court also did not err, plainly or otherwise, in ensuring that the
Lewises understood the consequences of pleading guilty. Danny and Carlington
argue that they were not advised how a jury would be instructed if they exercised
their right not to testify, but the district court “need not explain the possible
collateral consequences of a guilty plea,” United States v. Lejarde-Rada, 319 F.3d
1288, 1291 (11th Cir. 2003); see Rule 11(b)(1). Danny argues that he was not
fully informed of his right against self-incrimination, but the district court told him
that he would be waiving “the right on [his] part to decline to testify unless [he]
voluntarily elected to do so in [his] own defense.” Danny and Carlington argue
they were not advised about their maximum punishment, but the transcript of
Carlington’s oral colloquy and the corrected transcript of Danny’s oral colloquy
reflect that they were told the maximum statutory sentence for their crimes.
Although the original transcript states that Danny responded “no” when asked if he
understood his punishment, he did not object when the transcript was corrected to
reflect that his answer was “yes.” Even if the district court had erred in any of
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these respects, we cannot reverse the convictions when the Lewises do not argue
that they would not have pleaded guilty but for the alleged errors. See Moriarty,
429 F.3d at 1020.
The district court also did not abuse its discretion by refusing to hold a
hearing on Danny’s motion to discharge his trial counsel or on his motion to
withdraw his plea of guilty. Danny sought relief based on the alleged
ineffectiveness of his counsel, but he twice affirmed during his change of plea
hearing that he was “fully satisfied with the counsel, representation and advice”
provided by his attorney. “[T]here is a strong presumption that the statements
made during the colloquy are true,” Gonzalez–Mercado, 808 F.2d at 800 n.8, and
the district court reasonably determined that Danny failed to satisfy his “heavy”
burden, see Rogers, 848 F.2d at 168, to rebut that presumption with the self-
serving allegations made in his motion to discharge. Danny argues that the district
court was obliged to hold a hearing “to conduct a searching inquiry into the
voluntariness of [his] guilty plea,” but that inquiry must occur “[b]efore accepting
a plea of guilty.” See United States v. Siegel, 102 F.3d 477, 480–81 (11th Cir.
1996) (citing Rule 11(c)(1)). And the district court was entitled to deny Danny’s
motion to withdraw because he had enjoyed the close assistance of counsel before
entering his plea of guilty; his plea had been entered knowingly and voluntarily;
and allowing him to withdraw his plea would have wasted judicial resources and
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prejudiced the government by having to prepare for and conduct another trial. See
United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006).
We notice a clerical error in the written judgment against Danny. The
written judgment fails to make clear the disposition of seven charges against
Danny in counts 3, 5, 6, 7, 8, 9, and 11 in the second superceding indictment,
which the government agreed to dismiss after Danny entered his guilty plea. The
judgment instead reflects the following unintelligible statement: “Count(s) Number
of Count(s) and is or are dismissed on the motion of the United States.” The
docket sheet states that the district court accepted Danny’s plea of guilty to count
2, dismissed counts 3, 5, 6, 7, 8, 9, and 11, and that he had been acquitted of counts
1, 4, 10, and 11; that the district court sentenced Danny to 120 months of
imprisonment; and that Danny is presently serving that sentence. We vacate the
written judgment and remand for the district court to enter a new judgment stating,
consistent with the docket sheet, that Danny pleaded guilty to count 2 and that
counts 3, 5, 6, 7, 8, 9, and 11 are dismissed.
We AFFIRM the Lewises’ convictions, and we VACATE the judgment
against Danny and REMAND with instructions for the district court to correct a
clerical error.
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