United States v. Michael Jay Molzen

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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Nos. 03-1580/1593
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United States of America, *
*
Appellee, *
* Appeals from the United States
v. * District Court for the
* District of Minnesota.
Michael Jay Molzen, *
* [PUBLISHED]
Appellant. *
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Submitted: May 11, 2004
Filed: September 3, 2004
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Before WOLLMAN, HANSEN, and BYE, Circuit Judges.
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HANSEN, Circuit Judge.
Pursuant to a written plea agreement, Michael Jay Molzen pleaded guilty to
Count I of a superseding indictment, charging him with conspiring to distribute and
possess with intent to distribute more than 1,000 kilograms of marijuana, in violation
of 21 U.S.C. § 846 (2000). The district court1 sentenced him to 100 months in prison
and four years of supervised release, and ordered him to pay $10,000 in restitution.
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The Honorable James M. Rosenbaum, Chief Judge, United States District
Court for the District of Minnesota.
On appeal, Molzen’s counsel filed a brief and moved to withdraw pursuant to
Anders v. California, 386 U.S. 738 (1967). We dismissed the appeal because, as part
of the plea agreement, Molzen had waived his right to appeal his sentence.
Molzen then filed a 28 U.S.C. § 2255 (2000) motion raising three claims,
including that the district court had failed to advise him during the change-of-plea
colloquy that restitution could be imposed, as required by Federal Rule of Criminal
Procedure 11(c). The district court denied Molzen’s § 2255 motion but granted him
a certificate of appealability on the restitution issue. Molzen twice moved this court
to expand the certificate of appealability, and we denied each request.
Molzen also filed in the district court a motion to correct the judgment of
conviction, apparently under Federal Rule of Criminal Procedure 36. He argued that
the judgment should reflect a conviction for conspiring to distribute and possess with
intent to distribute an unspecified amount of marijuana, not for conspiring to
distribute and possess with intent to distribute more than 1,000 kilograms of
marijuana. The district court denied Molzen’s motion, and he appealed.
We consolidated the two appeals, and we now affirm.
First, assuming arguendo that the district court’s failure to comply with Rule
11(c) is cognizable in this § 2255 proceeding, but see United States v. Timmreck, 441
U.S. 780, 781-85 (1979), Molzen is entitled to no relief. Because he did not object
at the change-of-plea hearing when the district court failed to advise him about
restitution, we review only for plain error, see United States v. Vonn, 535 U.S. 55, 63
(2002), requiring Molzen to demonstrate a reasonable probability that he would not
have pleaded guilty if the district court had advised him that he could be required to
pay $10,000 in restitution, see United States v. Dominguez Benitez, 124 S. Ct. 2333,
2340 (2004). Molzen cannot make such a showing because he was advised by the
district court at the change-of-plea hearing and by the government in the plea
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agreement that he could be fined up to $2,000,000. “Although Federal Rule of
Criminal Procedure 11(c) requires the district court to explain a defendant’s liability
for both fines and restitution, we hold that failure to do so does not impact a
defendant’s substantial rights where he was warned of a potential fine larger than the
actual amount of restitution ordered.” United States v. Morris, 286 F.3d 1291, 1294
(11th Cir. 2002) (collecting cases from seven other circuits).
Second, Molzen’s motion to correct the judgment was without merit. He
pleaded guilty to a superseding indictment that charged him with a quantity of more
than 1,000 kilograms of marijuana; he was advised by the district court at the change-
of-plea hearing and by the government in the plea agreement of the penalties
corresponding to that drug quantity; and he was reminded by the district court at the
outset of the sentencing hearing that he had pleaded guilty to a quantity of more than
1,000 kilograms of marijuana. The judgment of conviction thus accurately reflects
that Molzen was convicted of conspiring to distribute and possess with intent to
distribute more than 1,000 kilograms of marijuana.
Accordingly, we affirm the judgment of the district court.
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