United States v. Fred Thompson

United States Court of Appeals
For the Eighth Circuit
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No. 13-1182
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Fred Miles Thompson
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of North Dakota - Fargo
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Submitted: October 25, 2013
Filed: October 21, 2014
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Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.
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KELLY, Circuit Judge.
Fred Thompson pleaded guilty to conspiracy to possess with intent to distribute
a mixture containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and
846, and use of a firearm during a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii). The district court1 sentenced Thompson to 480 months’
imprisonment on Count 1 and a consecutive life sentence on Count 2. Thompson
appeals, challenging the district court’s compliance with Fed. R. Crim. P. 11, alleging
the district court improperly participated in plea negotiations and failed to advise him
of the maximum sentence for Count 2. Because we find Thompson has not made the
required showing that there was a reasonable probability that but for the alleged
errors, he would not have entered a guilty plea, we affirm.2
I. Background
On March 21, 2012, a grand jury returned a two-count indictment against
Thompson, charging him in Count 1 with conspiracy to possess with intent to
distribute a mixture containing methamphetamine and in Count 2 with use of a
firearm during a drug trafficking crime. On September 12, 2012, the government
filed an information under the “three strikes” provision of 18 U.S.C. § 3559(c)(4),
asserting Thompson was subject to a mandatory life sentence if convicted on Count
2.
Thompson and the government negotiated a plea agreement wherein Thompson
agreed to plead guilty to both counts of the indictment in exchange for the
government agreeing to reduce the drug quantity charged in Count 1, thus lowering
the statutory mandatory minimum sentence to which he was exposed, and to withdraw
the § 3559 information. The plea agreement set forth the statutory penalties for each
count: Count 1 carried a mandatory minimum sentence of 5 years, a maximum
sentence of 40 years, and 4 years of supervised release; Count 2 carried a consecutive
7-year mandatory minimum sentence, a maximum sentence of life, and 3 years of
1
The Honorable Ralph R. Erickson, Chief Judge, United States District Court
for the District of North Dakota.
2
We have jurisdiction under 28 U.S.C. § 1291.
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supervised release. The plea agreement also contained an appeal waiver, which
provided that Thompson waived his right to appeal, except for a claim of ineffective
assistance of counsel or a sentence above the court-determined sentencing guidelines
range.
The day before trial was to begin, Thompson notified the district court he
would plead guilty. The proposed plea agreement was provided to the district court
for review. The district court delayed the arrival of the jury to the afternoon to allow
time for a change of plea hearing. When he appeared before the court the following
morning, however, Thompson stated he had changed his mind and still wanted a trial.
The district court then engaged in the following dialogue with Thompson:
THE COURT: Now if you’re convicted on both counts—the
second count is a use of a firearm in a crime of violence and drug
trafficking in violation of 18, 924. That’s 18, United States Code,
Section 924. And so basically here’s what’s going to happen. There
was an offer on the table that would have reduced the penalty on the first
count and would have removed the life—mandatory life sentence on the
second count. So—and I think that what you would have been looking
at a mandatory minimum, if I understand what the plea offer was, you
would have been looking at a mandatory minimum five years on Count
One with a consecutive seven on Count Two. So if you took the Plea
Agreement there would be a mandatory minimum 12 years of
imprisonment. If you’re acquitted obviously you don’t go to prison at
all. If you’re convicted on both counts you will be sentenced to a life
sentence plus seven years.
Now that means in this system that you will die in prison. That’s
because there is no parole and no early release in the federal system,
okay? The only way you can get out of prison if you’re convicted on the
charges that you currently face is if the president of the United States
pardons you or commutes your sentence to a period of years.
Do you understand that?
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THE DEFENDANT: Yes.
THE COURT: Okay. Now that means that at the end of the day
if you try this case and it goes to a jury and you’re convicted I will have
no choice, none, but to sentence you to life plus seven. And there will
be absolute—I won’t be able to do anything else no matter how much I
might wish I could. No matter how much I might try to do it, the law
will only allow one sentence.
As a matter of fact, even though we will have a delay between the
time the verdict comes in and the time of sentencing, we really don’t
need it because in the end I won’t have any choice. So the sentencing
hearing will become a mere formality and the only reason we’ll hold that
sentencing hearing if you’re convicted is to make some
recommendations about where you might serve your time in prison, all
right? Because my hands will be completely tied if you’re convicted.
Do you understand that?
THE DEFENDANT: Yes.
The prosecutor and Thompson’s attorney both confirmed with the court that the
benefit of the proposed plea agreement was that it provided for a lower drug quantity
on Count 1 and removed the mandatory sentence of life on Count 2. Thompson’s
attorney informed the court that he and Thompson had discussed the benefits of the
plea agreement the day before “at length.” The district court told Thompson:
THE COURT: Mr. Thompson, this is a high-risk strategy, you
know, and I think you ought to be aware of this because on one hand
you’ve got 12 years. You’re a young enough man that it seems probable
that you will be able to serve that sentence and walk out of prison
someday, all right? If you try this case and you win you’ll be free
sometime next week. If you try this case and you lose you will never be
free.
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Thompson stated he understood but still intended to go to trial. The district court
continued:
THE COURT: Now one of the risks you run in this trial is that if
the evidence starts to come in and you don’t think it’s going very well
it’s highly unlikely the government’s going to let you change your mind
and accept any kind of deal in the middle of the trial. Not impossible
but my experience tells me that they don’t usually do that. Do you
understand that?
THE DEFENDANT: Yes.
THE COURT: All right. And so this decision, you know, is in
many ways—once this train leaves town it leaves town and if you’re not
on it you’re not on it. You understand that?
THE DEFENDANT: Yes.
Thompson reiterated his intention to go to trial. After some discussion about
housekeeping matters, Thompson’s counsel asked for a recess. After a fifteen-minute
recess, Thompson informed the court he had decided to plead guilty pursuant to the
agreement.
The district court immediately held a plea hearing. During the plea colloquy
with Thompson, the court stated:
THE COURT: The defendant is charged in Count One with
conspiracy to possess with intent to distribute and distribute a controlled
substance, in violation of 21, United States Code, Section 841(a)(1).
The Court is informed that the Plea Agreement is back on. If that’s the
case the maximum term of imprisonment is 40 years, the minimum
mandatory is five. The maximum allowable fine is $5 million,
supervised release of four years and a $100 special assessment.
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Count Two is now an amended charge to use of a firearm in a
drug trafficking crime, in violation of 18, United States Code, Section
924(c)(1)(A)(iii). That would carry a statutory seven-year consecutive
sentence with a maximum allowable fine of $250,000, supervised
release not to exceed three years and a $100 special assessment.
Do you understand the charges against you, sir?
THE DEFENDANT: Yes.
THE COURT: And do you understand the penalties that you
face?
THE DEFENDANT: Yes.
Later in the plea hearing, the court further inquired of Thompson as follows:
THE COURT: Okay. And you understand that by pleading guilty
to Count Two there is a mandatory minimum seven-year sentence that
will be consecutive to the mandatory minimum five-year sentence on
Count One?
THE DEFENDANT: Yes.
THE COURT: And that will be the least amount that the Court
could sentence you. The Court could still sentence you to a higher
amount but the least that they could sentence you to is that 12 years. Do
you understand that?
THE DEFENDANT: Yes.
THE COURT: Yeah, because what I’m saying is there’s no way
I could go below that and not violate the law, all right? Do you
understand?
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THE DEFENDANT: Yes.
At no time before or during the plea hearing did the district court inform Thompson
he still faced a maximum sentence of life, even if he entered the plea agreement. The
district court acknowledged the discussion that had occurred prior to the plea hearing,
stating: “The Court did not intend to pressure you one way or the other in describing
what happened. I just wanted you to be fully aware of what was going on.”
Thompson agreed that “[n]o effort was made by the Court to force [him] into taking
this Plea Agreement” and that the plea was “a matter of [his] own free will.” The
district court then found Thompson’s plea to be “freely and voluntarily made.” The
court found the factual basis for the plea adequate, set a sentencing date of January
8, 2013, and ordered the preparation of a presentence investigation report (PSR).
On November 30, 2012, a draft PSR was prepared. The PSR accurately set
forth the minimum and maximum statutory sentences for both counts. The PSR
assessed Thompson a 4-level enhancement under the United States Sentencing
Guidelines Manual (USSG) for being a leader or organizer of a drug conspiracy, see
USSG § 3B1.1(a), and also concluded he was a career offender under USSG § 4B1.1.
The PSR scored Thompson with 27 criminal history points, resulting in a criminal
history category VI regardless of whether he qualified as a career offender. The
resulting recommended guidelines range for Count 1 was 210–262 months. Because
Count 2 required a minimum consecutive sentence of 84 months, the PSR
recommended a guidelines range for both counts of 294–346 months.
Thompson did not file objections to the PSR. On January 3, 2013, he did file
a sentencing memorandum, however, in which he objected to the role enhancement
and addressed the career offender issue by conceding he “is unable to argue that the
Defendant doesn’t fit the technical definition of a career offender,” but requested a
sentence “less than the full value associated with a career offender designation.” The
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memorandum did not address the PSR’s conclusion that Thompson’s statutory
maximum sentence on Count 2 was a life sentence. At the sentencing hearing, the
district court found Thompson qualified as a career offender, with an advisory
guidelines range of 210–262 months.3 During the hearing, the district court noted
that on Count 2, Thompson “face[d] a mandatory minimum seven years to life.”
Thompson’s attorney informed the court he had no objection to the PSR beyond what
had been noted in his sentencing memorandum.
The government recommended the district court vary upward to a total
sentence of 420 months based on Thompson’s long and violent criminal history.
Thompson’s counsel asked for a sentence of 180 months, relying in large part on
Thompson’s age. In his allocution, Thompson asked for leniency. Agreeing with the
government’s argument, the district court concluded it was “impossible to protect the
public from the conduct of the defendant without a sentence that guarantees that he
never is released.” The district court sentenced Thompson to the statutory maximum
sentence of 480 months in prison on Count 1 and a consecutive statutory maximum
sentence of life on Count 2.
II. Discussion
Thompson asserts, for the first time on appeal, that the district court violated
Fed. R. Crim. P. 11(c)(1) by participating in plea negotiations, thus coercing him into
pleading guilty, and violated Rule 11(b)(1)(H) by failing to advise him of the
maximum possible penalty on the firearm offense. The government argues Thompson
explicitly waived his right to appeal any claim other than one based on a sentence
3
The court also found Thompson was a leader or organizer pursuant to USSG
§ 3B1.1(a) and assessed him a 4-level enhancement. Because his offense level as a
career offender was higher than the total offense level which would have applied had
he not been a career offender, however, this enhancement did not affect his guidelines
range.
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higher than the calculated sentencing guidelines range or one based on ineffective
assistance of counsel. Thompson counters that the appeal waiver is not valid because
his plea was not knowing and voluntary due to the district court’s Rule 11 errors.
Whether a defendant has waived the right to appeal a sentence is subject to de
novo review. United States v. Haubrich, 744 F.3d 554, 556 (8th Cir. 2014). “When
reviewing a purported waiver, we must confirm that the appeal falls within the scope
of the waiver and that both the waiver and plea agreement were entered into
knowingly and voluntarily.” United States v. Andis, 333 F.3d 886, 889–90 (8th Cir.
2003) (en banc). The parties agree that Thompson’s appeal falls within the scope of
the waiver. Thompson specifically argues, however, that as a result of the alleged
Rule 11 violations, both his guilty plea and appeal waiver were not entered into
knowingly and voluntarily. Because Thompson did not waive an appeal challenging
the voluntariness of his plea, we address his arguments. Haubrich, 744 F.3d at 558
(“‘waivers are not absolute’ and ‘the decision to be bound by the provisions of the
plea agreement . . . must be knowing and voluntary.’” (quoting DeRoo v. United
States, 223 F.3d 919, 923 (8th Cir. 2000))).
Thompson did not object to any purported Rule 11 errors at the district court.
As a result, our review is for plain error. United States v. Foy, 617 F.3d 1029, 1034
(8th Cir. 2010) (“Instances of noncompliance with Rule 11 may be raised for the first
time on [direct] appeal, but our review is for plain error.”). To succeed on plain error
review, Thompson must show not only an error, that was plain, but also that there is
a “reasonable probability that but for the error, he would not have entered a guilty
plea.” Id. (quotation omitted). “Even if he establishes such a probability, relief is
discretionary and the court should not exercise that discretion unless the error
seriously affect[ed] the fairness, integrity or public reputation of judicial
proceedings.” Id. (alteration in original) (quotation omitted).
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Thompson’s first alleged Rule 11 error is that the district court violated Fed.
R. Crim. P. 11(b)(1)(H) by not advising him during his plea hearing he still faced a
potential life sentence on Count 2, even if he entered the plea agreement. Rule
11(b)(1)(H) directs the district court to inform a defendant in open court of “any
maximum possible penalty, including imprisonment, fine, and term of supervised
release,” and to make sure the defendant understands the maximum possible penalty
before accepting a guilty plea. The government concedes the district court did not
explicitly tell Thompson the maximum penalty for Count 2 was life imprisonment.
This omission was error, and it was plain. See United States v. Todd, 521 F.3d 891,
895 (8th Cir. 2008) (district court’s failure to advise defendant during plea hearing
of maximum sentence was error).
Thompson asserts the failure to inform him of the statutory maximum sentence
he faced was further compounded by the district court’s comments made shortly
before he decided to plead guilty—the second alleged Rule 11 error. He characterizes
these comments as improper participation in plea negotiations, in violation of Fed.
R. Crim. P. 11(c)(1) (The parties “may discuss and reach a plea agreement” but “[t]he
court must not participate in these discussions.”). “We have strictly construed [Rule
11(c)(1)] to require an absolute prohibition upon district court participation in plea
negotiations, either with counsel or in the presence of the defendant.” United States
v. Nesgoda, 559 F.3d 867, 869 (8th Cir. 2009) (citing United States v. Washington,
109 F.3d 459, 463 (8th Cir. 1997)).
Whether the district court’s comments constituted improper participation in
plea negotiations is a close question. Under Rule 11, the judge’s role is “limited to
acceptance or rejection of agreements after a thorough review of all relevant factors.”
United States v. Gallington, 488 F.2d 637, 640 (8th Cir. 1973). The district court’s
comparison of the sentence Thompson faced if he went to trial with the sentence if
he pleaded guilty, standing alone, is not improper participation in plea negotiations.
Cf. United States v. Harrell, 751 F.3d 1235, 1239 (11th Cir. 2014) (district court
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improperly participated in plea negotiations when it not only cautioned co-defendant,
in defendant’s presence, about likelihood of much higher sentence if convicted after
trial, but also initiated plea-related discussions with defendant; commented on plea
terms it would accept; and orchestrated plea agreement into which defendant
ultimately entered). By themselves, these comments may be read as the district
court’s attempt to ensure Thompson understood the different penalties he faced
depending on which option he chose—pleading guilty or going to trial.
Of more concern are the district court’s statements that Thompson was
engaging in a “high-risk strategy [ ] because on one hand you’ve got 12 years,” and
“[y]ou’re a young enough man that it seems probable that you will be able to serve
that sentence and walk out of prison someday, all right?” In reviewing these
statements, however, we note that the district court never expressly advised
Thompson to plead guilty or told him that pleading guilty would be in his best
interests. Cf. United States v. Davila, __U.S.__, 133 S. Ct. 2139, 2148 (2013),
(“Magistrate Judge’s repeated exhortations to Davila to “tell it all” in order to obtain
a more favorable sentence . . . were indeed beyond the pale”); United States v.
Hemphill, 748 F.3d 666, 675 (5th Cir. 2014) (district court’s “repeated and extensive
description of adverse consequences to other defendants who rejected pleas, and its
discussion of the ‘success story’ defendant who accepted a plea, were akin to the
court advocating a preference for the proposed plea offer and the belief that the plea
was in Hemphill’s best interest”).
Nor did the district court engage itself in the negotiation of particular terms or
conditions of the plea agreement. Cf. United States v, Kyle, 734 F.3d 956, 964–65
(9th Cir. 2013) (district court improperly participated in plea negotiations by telling
parties what sentence it would find acceptable in order to resolve case without trial);
United States v. Kraus, 137 F.3d 455–57 (7th Cir. 1998) (impermissible participation
in plea negotiations where, after district court rejected first plea proposal as too
lenient, government contacted district court’s “room clerk” with new proposal, to
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which clerk responded favorably, inducing defendant to agree to higher sentence);
United States v. Crowell, 60 F.3d 199, 205 (5th Cir. 1995) (district court violated
Rule 11 in committing itself to a “sentence of at least a certain level of severity”).
And the district court did not give an opinion as to the strength of the government’s
case in an effort to convince Thompson to plead guilty. Cf. Hemphill, 748 F.3d at
674 (district court violated Rule 11 by comparing evidence in Hemphill’s case to the
evidence in other defendants’ cases, implying Hemphill would also be found guilty);
United States v. Bradley, 455 F.3d 453, 462 (4th Cir. 2006) (district court improperly
participated in plea negotiations when, after first day of trial, it reviewed the amount
and strength of the government’s evidence with defendants and advised them they
might “be better off pleading to the indictment”).
The disputed comments in this case were isolated in nature, and an after-the-
fact review of the written transcript of the colloquy between the court and Thompson
may result in a tendency to give those comments more attention and weight than they
received at the time. Nevertheless, we recognize Thompson’s concerns. While
undoubtedly well-intentioned, the district court’s comments suggested a sentence of
12 years was a possible outcome if Thompson entered the plea agreement and pleaded
guilty. Cf. United States v. Baker, 489 F.3d 366, 373 (D.C. Cir. 2007) (district court
improperly participated in plea negotiations where court discussed “year and a day”
sentence in similar case, emphasized court would be “consistent” to the extent it
could, specifically mentioned previous defendant had “pled guilty early on,” and three
times encouraged parties to “talk again”); United States v. Diagle, 63 F.3d 346,
348–49 (5th Cir. 1995) (district court impermissibly participated in plea negotiations
by indicating to defendant in pre-plea meeting in chambers that it would follow the
government’s recommendation that his sentence be capped at nine years); United
States v. Werker, 535 F.2d 198, 203 (2nd Cir. 1976) (judge’s promise of specific
sentence to be imposed if defendant chose to plead guilty “necessarily constitutes
participat(ion) in such discussions”) (alteration in original). And, according to the
court, going to trial was a “high-risk strategy.” Cf. United States v. Rodriquez, 197
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F.3d 156, 159 n. 5 (5th Cir. 1999) (district court’s comment that “[r]ight now he’s
looking at five years minimum and in about 30 minutes, he’s going to be looking at
ten years minimum” indicated belief defendant would be found guilty if he went to
trial and constituted improper participation in plea negotiations) (alteration in
original).
Assuming for the sake of analysis that the district court’s comments constituted
improper participation in plea negotiations in violation of Rule 11, and that the error
was plain, Thompson still must show that the district court’s Rule 11 “errors affected
his substantial rights, and that failure to correct them would seriously affect the
fairness, integrity, or public reputation of judicial proceedings.” Todd, 521 F.3d at
896 (citing United States v. Olano, 507 U.S. 725, 732 (1993)). To show the errors
affected his substantial rights in this context, Thompson must demonstrate a
“reasonable probability that but for the error, he would not have entered a guilty
plea.” Id. (citing United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004)).
Some events on the day Thompson pleaded guilty do suggest that the Rule 11
errors may have influenced his decision to plead guilty. During the hearing before
he decided to plead guilty, Thompson told the district court three times he wanted to
go to trial. After a brief recess, Thompson informed the court he wanted to plead
guilty.4 The plea hearing immediately followed. The temporal proximity between a
court’s improper participation in plea negotiations and a plea hearing is a
circumstance that may support a finding of prejudice. See Davila, 133 S. Ct. at 2149;
see also Harrell, 751 F.3d at 1240–41 (plea hearing following a few hours after
4
Both parties point to the recess as a fact supporting their respective positions
regarding whether the district court violated Rule 11 by improperly participating in
plea negotiations; and both parties assert the reason for the recess was to allow
Thompson to consult with his attorney, presumably regarding the proposed plea
agreement. Neither the reason why the recess was requested, nor what happened
during the recess, is part of the record, and we decline to speculate as to either.
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improper participation found to be prejudicial); Hemphill, 748 F.3d at 677 (four day
delay between improper participation and plea hearing prejudicial); Kyle, 734 F.3d
at 966 (agreement reached twelve days after remarks found to be prejudicial); but see
United States v. Castro, 736 F.3d 1308, 1314 (11th Cir. 2013) (timing alone not
dispositive). Thompson also pleaded guilty before the same judge who made the
comments and who also failed to advise him of the proper statutory maximum
sentence. Cf. Davila, 133 S. Ct. at 2149 (noting defendant pleaded guilty before a
different judge than the judge who made the improper remarks and more than three
months had elapsed).
Other events on that same day, however, indicate otherwise. Thompson
complains of the district court’s failure to inform him he still faced a possible
sentence of life imprisonment. Yet he was informed of this fact in the plea agreement
he signed in open court at the hearing. The court discussed the plea agreement with
him at the hearing, and Thompson stated under oath he understood the maximum and
minimum penalties he faced if he pleaded guilty or was convicted after trial. He also
agreed that his attorney had “explain[ed] the charges to [him] and the possible
penalties that [he] might face if [he] were convicted or plead[ed] guilty.” As for
Thompson’s assertion that “the court[’s comments] caused him to believe he might
be sentenced to only 12 years,” the district court expressly told Thompson that his
sentence could be longer: “The Court could still sentence you to a higher amount but
the least that they could sentence you to is that 12 years.” Finally we note that at the
time he entered it, the plea agreement did offer Thompson a benefit: a lower
mandatory minimum sentence on Count 1, and the opportunity to receive less than a
mandatory life sentence on Count 2. While this opportunity did not ultimately come
to fruition, it was a benefit of the plea agreement nonetheless. See Todd, 521 F.3d
at 896-97 (benefits of plea agreement included government’s recommendation for
five-year term of imprisonment as well as avoiding possibility of consecutive
sentence).
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To determine whether Thompson satisfied his burden that he would not have
pleaded guilty absent the district court’s errors, however, we are to look at the entire
record, not just the plea hearing. Davila, 133 S. Ct. at 2150. During the presentence
process, Thompson received a PSR that again put him on notice that the maximum
sentence on Count 2 was life imprisonment. The PSR also recommended a guidelines
range for both counts of 294–346 months. Thompson filed no objections to the PSR.
Even in his sentencing memorandum, Thompson did not object to the statutory
maximum sentence of life—either to say he was not aware it would apply to him, or
that he thought it should not, as a matter of law, apply; nor did he assert that the
recommended guidelines range was far above the 12-year sentence he now asserts he
was lead to believe he might receive. Indeed, he conceded he had no legal or factual
basis to argue that he did not qualify as a career offender. And, significantly,
Thompson never sought to withdraw his guilty plea, because of Rule 11 errors or for
any other reason, even after he received a copy of the PSR. See Todd, 521 F.3d at
896.
If Thompson had taken any action to show that, but for the Rule 11 errors, there
is a reasonable probability he would not have entered a guilty plea, we might come
to a different result than we do. However, even during the sentencing hearing,
Thompson failed to give any indication that the district court had lead him to expect
a particular sentence in exchange for pleading guilty. During the hearing, the district
court reviewed the guidelines calculation and the minimum and maximum statutory
penalties Thompson faced on each count as set out in the PSR. For Count 2, the
district court informed Thompson he faced a “mandatory minimum seven years to
life.” Yet, when asked, Thompson’s attorney told the court he had no additional
objections to the PSR. The court then addressed Thompson directly: “[Y]ou have the
right to make a statement if you wish. Anything you say I will consider in
sentencing.” Thompson stated “[e]very day I think about whether I’m going to die
in prison,” and he asked for leniency. But neither he nor his attorney mentioned any
possible Rule 11 errors or expressed an expectation that Thompson would receive a
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sentence of any particular length if he waived his right to trial and entered the plea
agreement. It was not until Thompson filed his appeal that he ever raised a concern
about any comments the district court made, suggested those comments may have
influenced his decision to plead guilty, or expressed the desire to withdraw his guilty
plea. Thompson understandably hoped for a sentence of less than life imprisonment
after pleading guilty and waiving his right to trial. The plea agreement he entered
offered that possibility, but not that guarantee. After reviewing the entire
record—including the events on the day he pleaded guilty, the presentence process,
and the sentencing hearing—we conclude Thompson has not shown a reasonable
probability that, but for the Rule 11 errors, he would not have pleaded guilty.
Accordingly, we affirm.
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