United States v. Chester Risco

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11881
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHESTER RISCO,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:20-cr-00063-SPC-MRM-1
____________________
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2 Opinion of the Court 21-11881
Before BRANCH, LUCK, AND BRASHER, Circuit Judges.
PER CURIAM:
Chester Risco appeals his convictions following his guilty
plea to four drug-related counts. He argues for the first time on
appeal that his plea was involuntary and unknowing because the
district court failed to inform him (and he did not understand) that
he would be sentenced based on a greater amount of drugs than
the amount specified during the plea colloquy. Because there was
no plain error and Risco’s plea is valid, we affirm.
I. Background
A grand jury indicted Risco on four counts of distributing a
controlled substance containing a detectable amount of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C). The indictment did not specify any drug quantity.
Risco entered an open plea of guilty to all four counts. At
the change-of-plea hearing, Risco testified that he was 36 years old,
possessed a GED, and could read, write, and understand English.
He confirmed that he was not under the influence of any drugs,
alcohol, or medication. The magistrate judge advised Risco of the
rights that he would be waiving by pleading guilty, and Risco stated
that he understood. 1 The magistrate judge advised Risco of the
charges against him, reviewed the essential elements of each count,
1
Risco consented to the magistrate judge conducting the plea hearing.
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and informed Risco that the government would have to prove its
case beyond a reasonable doubt. Risco confirmed that he
understood and did not have any questions. The magistrate judge
then explained that each count carried a statutory maximum of 20
years’ imprisonment, and that the district court had the authority
to impose a sentence up to the maximum and to run sentences
consecutively. The magistrate judge emphasized that Risco’s
sentence could be higher than any estimate he had received from
his lawyer, but that even if that was the case, it would not be a basis
for withdrawing his plea. Risco confirmed that he understood.
The government informed the court that it previously extended
formal plea agreements to Risco, but he rejected them and opted
to enter an open plea. Risco confirmed that the government’s
statement was true and that he desired to plead guilty without the
benefit of a plea agreement.
The magistrate judge then asked the government for a
factual proffer. In relevant part, the government asserted that, on
four separate occasions, Risco sold methamphetamine to a
confidential informant in the amounts of 4.54 grams, 13.25 grams,
7.14 grams, and 6.55 grams, respectively. The magistrate judge
asked Risco if he “hear[d] everything the prosecutor just said,” and
Risco asked, “Just so I get it straight, there’s four charges with a
total of 31.—some-odd grams of methamphetamines that were
sold and that I would be pleading guilty to today?” The
government responded:
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4 Opinion of the Court 21-11881
[A]s a technical matter, the government hasn’t
alleged any specific quantity of methamphetamine in
the indictment. The government’s burden would be
to show that some amount of methamphetamine was
distributed on the four occasions. I did specifically
state how much the government believes was
distributed on each of those occasions. . . .
I would just like to make clear, however, Your
Honor, just in case this is not apparent, that is not
necessarily all that Mr. Risco could be held to
account—it’s not the government’s position that Mr.
Risco couldn’t be held responsible for more
methamphetamine at a sentencing hearing, but this is
what [the government] was prepared to prove for
those four particular deals.
The magistrate judge asked Risco’s counsel if he had “anything
further on that topic” and counsel stated “No, Your Honor, we’re
aware that, out of the four counts, the total is 31.48, and that’s what
my client’s pleading to today.” The magistrate judge then asked
Risco if he understood the discussion, and Risco stated “Yes, sir,
that I’m pleading out to the four counts with the amount specified
just then. At the moment, yes.” The magistrate judge emphasized
that it was important that Risco understand that the amount the
government specified was what it was prepared to prove if the case
went to trial, “but that it’s not bound to those quantities for
purposes of sentencing,” and Risco stated that he understood.
Risco then admitted to the factual basis of the plea, and confirmed
that he was entering the plea freely and voluntarily because he was
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in fact guilty. The magistrate judge found that Risco’s plea was
freely, voluntarily, knowingly, and intelligently entered, and
recommended that the district court accept his plea. The district
court accepted the plea.
Risco’s presentence investigation report (PSI) indicated that
he was deemed responsible for distributing 920.5 grams of
methamphetamine and 35.0 grams of fentanyl. Risco objected to
the amount of drugs attributed to him, arguing that he should be
held accountable for only the 31 grams he sold to the confidential
informant.2
At the sentencing hearing, Risco reiterated his objections to
the drug amounts attributed to him, arguing that he should only
be held accountable for the amount seized and admitted to in his
plea, and that drugs related to his personal use should have been
excluded from the calculation. After hearing argument from the
government and testimony from the detective involved in the case
and from Risco himself, the district court overruled Risco’s
objection. Risco’s resulting guidelines range was 210 to 262
months’ imprisonment.
Prior to the district court pronouncing sentence, Risco’s
counsel indicated that Risco wanted to provide an allocution.
During his allocution, Risco indicated that he did not “feel like this
2
This opinion does not discuss Risco’s objections to the PSI that are not
relevant to the issue on appeal.
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6 Opinion of the Court 21-11881
case [was] handled the best it could have been handled” and
emphasized that
when I went in and pled guilty to the 31 grams and I
was accepting responsibility for that 31 grams, I asked
[the prosecutor] and the Magistrate Judge what I was
being—pleading guilty to that day, . . . and [the
prosecutor] did the calculations and he said, at this
time, it’s 31.48 grams of methamphetamines. . . . But
then, when we do the PSI . . . there’s all this other
stuff that come into effect that . . . I’m still trying to
wrap my mind around it. It’s—I don’t understand it.
The government responded that it “never promised Mr. Risco he
would be sentenced pursuant to some type of a[n] agreed upon
weight. In fact, [he] rejected plea agreements where the
government did agree upon a weight.” Risco clarified his
objection, explaining
I wasn’t questioning [the Magistrate Judge’s]
judgment [at the change-of-plea hearing] or his
questioning at all. . . . [The] only thing that I had a[n]
issue—that I was questioning period on the whole
thing was the act of the word relevant conduct.
At the time I pled guilty, I was unaware of relevant
conduct. It wasn’t until the [PSI] came out after I
spoke with [the Magistrate Judge] and took my guilty
plea that the relevant conduct came about and that’s
when [he] had to start wrapping [his] mind around it.
I’m not trying to back out or downplay any of that or
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say—and then [my counsel] did finally explain the
relevant conduct to me later on after that.
My only thing was just about how there’s a lot of
things that I did request [of counsel] that I didn’t get
or that things that did come up that I haven’t seen.
(emphasis added). The district court imposed concurrent
sentences of 235 months’ imprisonment for each count. This
appeal followed.
II. Discussion
Risco argues that his plea was not knowing and voluntary
because it is clear from the record that he was not informed (and
that he did not understand) the consequences of his plea—namely,
that he could be sentenced based on a larger amount of drugs than
what he admitted to at the change-of-plea hearing.
“When, as here, a defendant argues for the first time on
appeal that his guilty plea was constitutionally invalid because it
was not knowing and voluntary, we review only for plain error,
using a four-prong inquiry.” 3 United States v. Roosevelt Coates, 8
F.4th 1228, 1235 (11th Cir. 2021); see also United States v. Moriarty,
3
Risco states in his initial brief that his claim is subject to de novo review.
However, because he did not challenge the validity of his plea in the district
court, plain error review applies. Risco’s objections at sentencing to the
amount of drugs were insufficient to preserve his challenge to the validity of
his plea, because they were made after the plea, he did not move to withdraw
his plea on the ground that it was involuntary, and he stated that he was “not
trying to back out” of his plea.
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429 F.3d 1012, 1018 & n.2 (11th Cir. 2005) (explaining that where a
defendant fails to file a motion to withdraw his plea or otherwise
raise his objections to the district court, we review the challenge to
the plea for plain error). “To establish plain error, a defendant must
show that (1) there was an error, (2) the error was plain, and (3) the
error affects [his] substantial rights.” Roosevelt Coates, 8 F.4th at
1235. Provided that these conditions are met, we may then
exercise our “discretion to recognize an unpreserved error but only
if (4) the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. (quotation omitted).
Under plain error review, the defendant bears the burden of
persuasion. United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir.
2003). Thus, “a defendant who seeks reversal of his conviction
after a guilty plea, on the ground that the district 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. Dominguez Benitez, 542 U.S. 74, 83 (2004).
In order for a plea to be knowing and voluntary, the court
accepting the plea must comply with Fed. R. Crim. P. 11, and, in
particular, address three “core principles” by ensuring that: “(1) the
guilty plea must be free from coercion; (2) the defendant
understands the nature of the charges; and (3) the defendant must
know and understand the consequences of his guilty plea.” United
States v. Mosley, 173 F.3d 1318, 1322 (11th Cir. 1999) (quotation
marks omitted). We apply a “strong presumption” that statements
made by a defendant during his plea colloquy are true. United
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21-11881 Opinion of the Court 9
States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). Therefore,
“when a defendant makes statements under oath at a plea colloquy,
he bears a heavy burden to show his statements were false.”
United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988).
Risco failed to show that the district court committed plain
error in accepting his guilty plea. A review of the record confirms
that the plea colloquy was thorough, complied with the
requirements of Rule 11, and addressed the three core principles
for a knowing and voluntary plea. In particular, the magistrate
judge explained to Risco that the amount of drugs the government
referenced in the plea proceeding was the amount that the
government was prepared to prove if the case went to trial, but
that the government was not bound by this amount at sentencing,
and Risco confirmed that he understood. The magistrate judge
also informed Risco that the sentence imposed could be up to the
statutory maximum and that even if it was higher than Risco
expected, it would not be a basis for withdrawing his plea. Once
again Risco confirmed that he understood. Thus, Risco’s
contention that he was not informed and did not understand that
his sentence could be based on a different amount of drugs than
what he pleaded guilty to is belied by the record.
Furthermore, even assuming there was an error, Risco failed
to establish the error affected his substantial rights because he does
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not assert that, but for the alleged error, he would not have pleaded
guilty. Accordingly, we affirm.4
AFFIRMED.
4
After filing his initial counseled brief, Risco, through counsel, filed a notice
of supplemental authority citing the Tenth Circuit’s then-recent decision in
United States v. Wilson, 17 F.4th 994, 1002–04 (10th Cir. 2021), which held
that personal use quantities of drugs do not qualify as relevant conduct for
purposes of the Sentencing Guidelines, unless the drugs are connected to the
offense of conviction. Risco points out that he made a similar argument at
sentencing, and he urges us to adopt the Tenth Circuit’s ruling. Risco,
however, abandoned this issue by failing to raise it in his initial brief. United
States v. Ardley, 242 F.3d 989, 990 (11th Cir. 2001). And a party cannot use a
notice of supplemental authority to raise a new issue that was not briefed
initially. United States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000). Moreover,
even if the issue was properly before us, it is squarely foreclosed by binding
precedent, which we are required to follow unless and until it is overruled by
this Court sitting en banc or the Supreme Court. See United States v.
Antonietti, 86 F.3d 206, 209 (11th Cir. 1996) (holding that drugs intended for
personal use are properly considered by district court in determining base
offense level under the guidelines).