United States v. Hughes , 550 F. App'x 551 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 13, 2013
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
No. 13-4047
v. (D.C. No2:12-CR-00265-DAK-2)
(D. Colo.)
CHARLES TYLER HUGHES,
Defendant–Appellant.
ORDER AND JUDGMENT*
Before LUCERO, MURPHY, and PHILLIPS, Circuit Judges.
Charles Hughes appeals following his conviction for bank fraud and aggravated
identity theft. Exercising jurisdiction under 28 U.S.C § 1291, we affirm.
I
Hughes was charged in a multi-defendant indictment with three counts of bank
fraud in violation of 18 U.S.C. § 1344 and three counts of aggravated identity theft in
* At the parties’ request, the case is unanimously ordered submitted without oral
argument pursuant to Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case, res
judicata, and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 32.1.
violation of § 1028A. The indictment alleges that Hughes and two other individuals
engaged in a scheme and artifice to defraud several banks by unlawfully obtaining,
without authority or permission, the stolen personal information of several victims. The
defendants used this stolen information to open checking accounts in the names of the
victims, deposited stolen, forged, and fraudulent checks into the accounts, and then
withdrew those funds for their personal use.
Pursuant to a written plea agreement, Hughes pled guilty to Counts 1 and 8 of the
indictment. In Count 8, the only charge relevant to this appeal, the indictment alleges
that Hughes committed aggravated identity theft when he “did knowingly possess and
use, without lawful authority, a means of identification of another person . . . during and
in relation to committing violations of 18 U.S.C. § 1344” by using the “Name and US
Passport of Z.T. to open [a] checking account at Horizon [Federal Credit Union].” The
plea agreement states that the elements of Count 8 are: “(1) Defendant possessed or used,
(2) an identification of another person, (3) during and in relation to a felony violation
enumerated in 18 U.S.C. § 1028A(c).”
In the plea agreement, Hughes acknowledged that his attorney “explained the
nature of the charges against” him and that he “underst[oo]d the charges and what the
government is required to prove in order to convict.” Hughes admitted that he executed a
“scheme and artifice to defraud” by “assuming the identity of victim Z.T. to open a
checking account . . . then deposited stolen, forged and fraudulent checks into the . . .
checking account, . . . and thereafter withdrew funds from the account for [his] personal
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use and benefit.”
At a change of plea hearing, Hughes represented that he had “received a copy of
the indictment,” had “discussed the charges against [him] and the case, in general, with
[his] lawyer,” and was satisfied with his lawyer’s assistance. The district court requested
that the prosecutor identify the elements of Count 8, and the prosecutor responded “that
the defendant possessed or used an identification of another person during and in relation
to a felony violation enumerated in 18 United States Code, Section 1028A(c).” The
district court accepted Hughes’ guilty plea at the conclusion of the hearing. He was
subsequently sentenced to 36 months’ imprisonment. Hughes timely appealed.
II
Hughes argues that the district court erred in accepting his guilty plea to Count 8
because he was not properly informed of the elements of that offense. Under Fed. R.
Crim. P. 11, a district court must address the defendant personally in open court and
“[d]uring this address, the court must inform the defendant of, and determine that the
defendant understands, . . . the nature of each charge to which the defendant is pleading.”
Fed. R. Crim. P. 11(b)(1)(G). “[B]ecause a guilty plea is an admission of all the elements
of a formal criminal charge . . . some rehearsal of the elements of the offense is
necessary.” United States v. Gigot, 147 F.3d 1193, 1198 (10th Cir. 1998) (quotations
omitted). A guilty plea cannot “be voluntary in the sense that it constituted an intelligent
admission that [the defendant] committed the offense unless the defendant received real
notice of the true nature of the charge against him, the first and most universally
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recognized requirement of due process.” Henderson v. Morgan, 426 U.S. 637, 645
(1976) (quotation omitted).
Because Hughes did not raise before the district court the issue he now asserts on
appeal, we review only for plain error. See United States v. Frost, 684 F.3d 963, 971
(10th Cir. 2012). “Plain error occurs when there is (1) error, (2) that is plain, which
(3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. (quotation omitted).
The government concedes that the district court plainly erred by failing to inform
Hughes that Count 8 required proof that he “knowingly . . . possesse[d] or use[d] without
lawful authority, a means of identification of another person.” § 1028A(a)(1) (emphases
added). To satisfy the third prong of plain error review, that the “error affects substantial
rights,” Hughes must “show that he would not have pleaded guilty had the court
complied with Rule 11.” United States v. Ferrel, 603 F.3d 758, 763 (10th Cir. 2010); see
also United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004) (“[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. Vaughn, 7 F.3d 1533, 1535
(10th Cir. 1993) (“In addressing the harmless error rule of subsection 11(h), the district
court’s error warrants reversal only if it had a significant influence on appellant’s
decision to plead guilty.”); Fed. R. Crim. P. 11(h) (“A variance from the requirements of
this rule is harmless error if it does not affect substantial rights.”).
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Although the plea agreement and the district court’s Rule 11 colloquy omitted the
“knowingly” and “without lawful authority” language, the indictment correctly stated the
elements of Count 8. Hughes acknowledged that he received a copy of the indictment,
discussed it with his attorney, and understood the nature of the charges against him. “[A]
defendant who receives the information omitted by the district court from other sources
generally cannot demonstrate that he would not have pleaded guilty had the court also so
informed him.” Ferrel, 603 F.3d at 763. Moreover, the factual recitation contained in the
plea agreement strongly suggests that Hughes possessed Z.T.’s identification knowingly
and without lawful authority. Even on appeal, Hughes does not state that he would have
pled not guilty but for the error. Because the record does not suggest that the district
court’s error affected Hughes’ substantial rights by significantly influencing his decision
to plead guilty, we conclude he has not satisfied the third prong of plain error review.
III
For the foregoing reasons, we AFFIRM.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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