[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 2, 2009
No. 09-11531 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00203-CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAKENDRICK SHANCHEZ MARSHALL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(December 2, 2009)
Before EDMONDSON, BIRCH and FAY, Circuit Judges.
PER CURIAM:
Lakendrick Shanchez Marshall appeals from his conviction for possession
with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a). On
appeal, Marshall argues that his guilty plea was invalid because it was unknowing
and involuntary and, as result, did not satisfy the due process concerns articulated
by the Supreme Court in Boykin v. Alabama,
395 U.S. 238, 242-43,
89 S. Ct. 1709,
1711-13,
23 L. Ed. 2d 274 (1969). Specifically, Marshall argues that his plea was
invalid because the district court did not expressly inform him at his plea colloquy
that the government was not required to file a substantial-assistance motion on his
behalf. Finally, Marshall indicates that the district court did not fully provide him
with the opportunity to allocute at sentencing. For the reasons set forth below, we
affirm.
I.
In 2008, a federal grand jury indicted Marshall on one count of possession
with intent to distribute 54 grams of crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1). Marshall and the government entered into a written plea agreement,
whereby Marshall agreed to plead guilty to the indictment. The plea agreement
included a provision generally stating that, if Marshall provided substantial
assistance to the government in its prosecution of others, the government, in its
sole discretion, could file a motion to reduce Marshall’s sentence under U.S.S.G.
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§ 5K1.1 or Fed.R.Crim.P. 35. Specifically, this provision stated, in relevant part,
that:
If the defendant provides full, complete, truthful and substantial
cooperation to the United States, which results in substantial
assistance to the United States in the investigation or prosecution of
another criminal offense, a decision specifically reserved by the
United States in the exercise of its sole discretion, then the United
States agrees to move for a downward departure in accordance with
Section 5K1.1 of the United States Sentencing Guidelines or Rule 35
of the Federal Rules of Criminal Procedure, whichever the United
States deems applicable. The United States specifically reserves the
right to make the decision relating to the extent of any departure
request made under this agreement based upon its evaluation of the
nature and extent of the defendant’s cooperation. The defendant
understands that the United States will make no representation or
promise with regard to the exact amount of reduction, if any, the
United States might make in the event that it determines that the
defendant has provided substantial assistance . . . If the defendant’s
effort to cooperate with the United States does not amount to
substantial assistance as determined solely by the United States, the
United States agrees to recommend to the district court judge who
sentences the defendant that the defendant receive a sentence at the
low end of the applicable advisory guideline range.
Marshall signed a statement in which he averred that he had read the plea
agreement and “carefully reviewed every part of it with [his] attorney.” He further
averred that he understood the plea agreement and voluntarily agreed to it. In
addition, Marshall’s attorney signed a statement in which he averred that he had
carefully reviewed each portion of the plea agreement with Marshall, and that, in
his opinion, Marshall’s decision to plead guilty was knowing and voluntary.
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The court held a change-of-plea hearing, during which Marshall was placed
under oath and informed that he would be subject to prosecution for perjury if he
made a false statement. Marshall averred that he understood the charge set forth in
the indictment, and that he had signed and agreed to the plea agreement and factual
resume. He acknowledged that, by signing the plea agreement, he had represented
that he had read the plea agreement and discussed it with his attorney, and that he
understood the terms of the agreement. Marshall stated that no one had pressured,
influenced, or coerced him into signing the plea agreement, and that he understood
that he faced a sentence between 120 months’ to life imprisonment.
The court informed Marshall that by pleading guilty, he waived his right to a
jury trial and its attendant rights, such as the rights to testify or not testify, and
present witnesses in his own defense. The court reviewed with Marshall that only
the court had the authority to sentence him, and that the court was not bound by
any agreements or recommendations made by the parties concerning Marshall’s
sentence. Finally, the court reviewed the elements of Marshall’s offense, and
Marshall stated that the government could prove beyond a reasonable doubt that he
was guilty of the offense. During the hearing, the court did not specifically
mention the substantial-assistance provision of Marshall’s plea agreement. The
court accepted Marshall’s guilty plea. None of the parties raised any objections to
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the plea colloquy or plea agreement. During the hearing, none of the parties
specifically mentioned the substantial-assistance provision of the plea agreement.
During the months following his plea colloquy, Marshall sent three letters to
the court, which he wrote and filed without the assistance of counsel. In two of
these letters, Marshall generally asked the court to have mercy on him at
sentencing. In his third letter, Marshall stated that he had provided substantial
assistance to the government by “giving up” between seven and ten people. The
remainder of this letter was devoted to other matters concerning Marshall’s
sentencing, and he did not otherwise mention his assistance to the government or
the substantial-assistance provision of his plea agreement.
Thereafter, at sentencing, Marshall noted that the government had not filed a
substantial-assistance motion recommending that his sentence be reduced.
Marshall advised that he had met with law enforcement officers and had made a
factual proffer, and that between three to five individuals implicated in this proffer
had since been arrested. The court then asked Marshall if there was anything he
would like to say before sentence was imposed. Marshall made a personal
statement to the court, in which he generally expressed remorse for his offense.
After Marshall made his personal statement, the government stated that
Marshall did provide information to law enforcement officers, but that the
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information had not yet provided the government with assistance in its prosecution
of others. The government also stated, however, that it would file a motion to
reduce Marshall’s sentence if his proffer led to the future arrest or prosecution of
any individuals. At this point, the court, Marshall’s attorney, and Marshall
engaged in the following exchange:
Marshall: Judge, I got one thing, a problem about what
Mr. --
Marshall’s Counsel: Whoa, whoa, whoa, whoa, whoa, whoa. We
don’t have no problems, huh?
Marshall: No, I don’t have a problem, but I’m saying I
got some concern about what [the
prosecutor] said --
Marshall’s Counsel: No, no, don’t. Hold on. Hold on. Let’s just
be quiet right now. Let me call him on it,
okay? Let me follow up. We’ve got a time
and a place for that. It’s not right now.
The court: All right. Okay. Anything further from the
government?
Thereafter, the court sentenced Marshall to a term of 151 months’
imprisonment. The court asked Marshall if he had “any objections or other matters
that we need to put on the record at this time?” Marshall responded that he had no
objections.
II.
“Constitutional objections not raised before the district court are reviewed
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only for plain error.” United States v. Moriarty,
429 F.3d 1012, 1018 (11th Cir.
2005). In order to demonstrate plain error, “a defendant must show there is
(1) error, (2) that is plain, and (3) that affects substantial rights.”
Id. at 1019. If
these three conditions are satisfied, this Court may exercise its discretion to correct
the error if it “seriously affects the fairness, integrity or public reputation of
judicial proceedings.”
Id. (quotation omitted). In order to demonstrate that an
error made during a plea colloquy affected a defendant’s substantial rights, the
defendant must show that, but for the error, he would not have pled guilty. United
States v. Dominguez Benitez,
542 U.S. 74, 83,
124 S. Ct. 2333, 2340,
159 L. Ed. 2d
157 (2004). In order for an error to be “plain” for purposes of plain-error review,
“it must be plain under controlling precedent or in view of the unequivocally clear
words of a statute or rule.” United States v. Lett,
483 F.3d 782, 790 (11th Cir.
2007).
Because a guilty plea results in a defendant’s conviction and his waiver of
numerous constitutional rights, due process requires that a district court may not
accept a defendant’s guilty plea in the absence of an affirmative showing that the
plea was knowing and voluntary.
Boykin, 395 U.S. at 242-43, 89 S.Ct. at 1711-13;
Moriarty, 429 F.3d at 1019. One of the purposes of Fed.R.Crim.P. 11 is to assist
the district court in making the constitutionally required determination that a guilty
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plea is knowing and voluntary. McCarthy v. United States,
394 U.S. 459, 465,
89
S. Ct. 1166, 1170,
22 L. Ed. 2d 418 (1969); See also United States v. Morse,
36 F.3d
1070, 1072 (11th Cir. 1993). “Three core concerns underlie [Rule 11]: (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). Regarding Rule 11’s third core concern, this Court has explained that
the court must ensure only that the defendant is aware of the direct consequences
of his guilty plea. United States v. Lejarde-Rada,
319 F.3d 1288, 1291 (11th Cir.
2003). “Rule 11 does not require a sentencing court to inform a defendant of every
possible consequence of his plea.”
Morse, 36 F.3d at 1072.
A defendant’s right to allocute requires that a district court invite the
defendant to speak before sentence is imposed. United States v. Carruth,
528 F.3d
845, 846-47 (11th Cir. 2008)
III.
We conclude that plain-error review applies to Marshall’s argument on
appeal because he failed to object, either at his plea colloquy or at sentencing, that
he did not understand the substantial-assistance provision of his plea agreement, or
that there was otherwise any problem with his guilty-plea hearing. While Marshall
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mentioned in one of his pro se letters to the court that he had provided information
to the government, he did not indicate that he did not understand the substantial-
assistance provision of his plea agreement. Moreover, a fair reading of the
sentencing transcript reflects that Marshall attempted to take issue with the
government’s assertion that his information had not resulted in substantial
assistance in its prosecution of others, and that he did not attempt to make a
statement concerning his understanding of the plea agreement. Thus, Marshall
failed to apprise the district court of any objection to his guilty plea hearing, and
plain-error review applies to his argument that his plea was invalid.
Marshall cannot demonstrate that the district court committed plain error by
failing to specifically state at his plea colloquy that the government was not
required to file a substantial-assistance motion on his behalf. The record
demonstrates that the district court properly verified that Marshall’s plea complied
with the requirements of due process by ensuring that his plea satisfied Rule 11’s
core concerns. Specifically, the court verified that Marshall: (1) did not plead
guilty due to coercion; (2) understood the nature of the charges against him; and
(3) understood the direct consequences of his plea, such as his waiver of the right
to go to trial and its attendant rights. In addition, the record indicates that Marshall
understood that the government was not obligated to file a substantial-assistance
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motion in his case because Marshall signed a statement indicating that he
understood the entire plea agreement, and the agreement stated that the government
possessed sole discretion as to whether it would file such a motion. Marshall also
signed a statement in which he averred that his attorney had reviewed “every part”
of the plea agreement with him. Marshall’s attorney signed a nearly identical
statement. During his change-of-plea hearing, Marshall informed the court that he
had reviewed the plea agreement with his attorney and understood its terms and
conditions. Thus, Marshall’s contention that he did not actually understand the
substantial-assistance provision is belied by his representations to the court.
Even if Marshall could demonstrate that the district court erred, he could not
demonstrate that this error was plain because there is no indication that Boykin
requires that a district court specifically review a defendant’s substantial-assistance
provision with him before accepting his guilty plea. Because Marshall cannot
demonstrate error, let alone plain error, we need not decide the issue of whether
any error the district court may have made affected Marshall’s substantial rights.
We note, in any event, that the record does not indicate that Marshall would not
have pled guilty if the district court had expressly stated at his plea colloquy that
the government was not required to file a substantial-assistance motion in his case.
Accordingly, Marshall cannot satisfy the requirements of plain-error review, and
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his argument that his guilty plea was invalid lacks merit.
Finally, Marshall’s contention that the district court deprived him of the
opportunity to allocute also lacks merit because the court expressly invited
Marshall to make a personal statement prior to sentencing, and Marshall took
advantage of this opportunity.
Conclusion
Based on our review of the record and the parties’ briefs on appeal, we
affirm.
AFFIRMED.
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