United States v. Joseph Michael BOrden

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-15453
Non-Argument Calendar
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D.C. Docket No. 5:13-cr-00098-AKK-HGD-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH MICHAEL BORDEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(October 7, 2014)
Before TJOFLAT, HULL and FAY, Circuit Judges.
PER CURIAM:
Pursuant to a plea agreement, Joseph Borden pled guilty to both counts of
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two-count indictment: Count One, armed bank robbery, in violation of 18 U.S.C.
§§ 2113(a) and (d); and Count Two, brandishing a firearm in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The District Court then
sentenced Borden to consecutive prison terms of twenty-one months on Count One
and forty-two months on Count Two.
Borden now appeals his convictions, presenting two arguments, neither of
which was raised before the District Court: (1) his pleas of guilty were involuntary
because his lawyer coerced him in to entering the pleas, and (2) his lawyer denied
him his Sixth Amendment right to effective assistance of counsel in failing
adequately to investigate his potential defenses and in coercing him into pleading
guilty. We do not consider the second argument because the record has not been
developed regarding counsel’s alleged inappropriate behavior. United States v.
Franklin, 694 F.3d 1, 8 (11th Cir. 2012).1 We find no merit in Borden’s first
argument and according affirm his convictions.
Borden was indicted along with John Vansteenis. Vansteenis entered the
People’s Bank in Decatur, Alabama, and, pointing a pistol at a teller, demanded
money. The teller gave him approximately $2,700. He left the bank and joined
Borden, who was waiting in the getaway car. The car was stopped by the police,
and Vansteenis admitted that he had robbed a bank. Borden, after being advised of
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Borden can challenge his lawyer’s allegedly ineffective performance in a collateral
proceeding brought under 28 U.S.C. § 2255.
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his Miranda rights, said that he had driven Vansteenis around so he could rob
various targets.
A defendant who enters a plea of guilty waives several constitutional rights
and, therefore, due process requires that the plea be knowingly and voluntarily
made. McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 1171, 22 L.
Ed. 2d 418 (1969). For a guilty plea to be entered into knowingly and voluntarily,
it must satisfy three “core concerns,” of Rule 11, which are that “(1) the guilty plea
must be free from coercion; (2) the defendant must understand the nature of the
charges; and (3) the defendant must know and understand the consequences of his
guilty plea.” United States v. Siegel, 102 F.3d 477, 481 (11th Cir. 1996); See Fed.
R. Crim. P. 11.
In order to ensure that a plea is knowing and voluntary, trial courts are “best
advised to conduct an on the record examination of the defendant which should
include, inter alia, an attempt to satisfy itself that the defendant understands the
nature of the charges, his right to a jury trial, the acts sufficient to constitute the
offenses for which he is charged and the permissible range of sentences.” Boykin
v. Alabama, 395 U.S. 238, 244 n.7, 89 S. Ct. 1709, 1713 n.7, 23 L. Ed. 2d
274 (1969). We apply a “strong presumption” that statements made by a defendant
during his plea colloquy are true. United States v. Medlock, 12 F.3d 185, 187 (11th
Cir. 1994). Therefore, “when a defendant makes statements under oath at a plea
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colloquy, he bears a heavy burden to show his statements were false.” United
States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988).
Because Borden did not raise his involuntary-guilty-plea argument in the
District Court, we review it for plain error, for plain-error review applies to
purported Rule 11 violations raised for the first time on appeal. United States v.
Monroe, 353 F.3d 1346, 1349–50 (11th Cir. 2003). He must show that (1) an
“error”; (2) “that is plain”; and (3) “that affects substantial rights” has occurred.
Id. at 1349 (quotations omitted). “If all three conditions are met, [we] may
exercise [our] discretion to notice a forfeited error, but only if (4) the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (quotations omitted).
There is no plain error here. In the plea agreement, Borden acknowledged
that he entered into the agreement voluntarily and knowingly and that no threats or
force were used to induce him into pleading guilty. In addition, at the change-of-
plea hearing, Borden told the District Court that no one had threatened or coerced
him into entering the guilty plea. Borden’s argument, that he felt like he had no
choice but to tell the court that he entered into the agreement willingly, is not
enough alone to show that he was coerced into a guilty plea.
AFFIRMED.
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