USCA11 Case: 21-14221 Date Filed: 11/10/2022 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14221
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMY LAMAR BERRY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 1:19-cr-00234-ECM-JTA-1
____________________
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2 Opinion of the Court 21-14221
Before WILSON, ROSENBAUM, and BLACK, Circuit Judges.
PER CURIAM:
Jimmy Lamar Berry appeals his convictions after condition-
ally pleading guilty to being a felon in possession of a firearm and
for the possession of a controlled substance with the intent to dis-
tribute. Berry challenges the denial of his motion to suppress evi-
dence seized from his residence, and he also contends the district
court plainly erred in failing to strictly comply with Federal Rule of
Criminal Procedure 11, as he was misadvised by a magistrate judge
of the potential total sentence he faced during his change of plea
hearing. After review, we affirm Berry’s convictions.
I. DISCUSSION
A. Motion to Suppress
Berry asserts the district court erred in denying his motion
to suppress because (1) the warrant affidavit failed to establish a fair
probability that evidence of a crime would be found at his property,
and (2) the good faith exception does not apply. We address each
argument in turn.
1. Affidavit
The Fourth Amendment provides for the right to be free
from unreasonable searches and seizures, and mandates “no War-
rants shall issue, but upon probable cause, supported by Oath or
affirmation.” U.S. Const. Amend. IV. “To obtain a warrant, police
must establish probable cause to conclude that there is a fair
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21-14221 Opinion of the Court 3
probability that contraband or evidence will be found in a particu-
lar place.” United States v. Gibson,
708 F.3d 1256, 1278 (11th Cir.
2013) (quotation marks omitted). We give “great deference” to the
determination of probable cause by a trial court judge. United
States v. Brundidge,
170 F.3d 1350, 1352 (11th Cir. 1999). “[T]he
duty of a reviewing court is simply to ensure that the magistrate
had a substantial basis for concluding that probable cause existed.”
Illinois v. Gates,
462 U.S. 213, 238-39 (1983) (quotation marks and
alteration omitted).
The district court did not err 1 in denying Berry’s motion to
suppress as the affidavit attached to the search warrant provided
sufficient information to establish probable cause to search the
property. 2 First, the victim of the August 25, 2017, shooting stated
the crime occurred “in the 700 block of Monroe Street” and the
suspect fled into the backyard of 718 Monroe Street. See United
States v. Martinelli,
454 F.3d 1300, 1307 (11th Cir. 2006) (explaining
1 We review a district court’s denial of a defendant’s motion to suppress evi-
dence under a mixed standard of review, applying the clearly erroneous stand-
ard to the findings of fact and a de novo standard to the application of law to
those facts. United States v. Jimenez,
224 F.3d 1243, 1247 (11th Cir. 2000).
2 Berry did not request a Franks hearing, nor did he make the requisite sub-
stantial preliminary showing to warrant one. United States v. Sarras,
575 F.3d
1191, 1218 (11th Cir. 2009) (“To be entitled to a Franks hearing, a defendant
must make a substantial preliminary showing that a false statement knowingly
and intentionally, or with reckless disregard for the truth, was included by the
affiant in the warrant affidavit, and if the allegedly false statement is necessary
to a finding of probable cause.” (quotation marks omitted)).
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4 Opinion of the Court 21-14221
when a warrant was issued based on the statement of a victim, we
view the warrant with less skepticism than one based on the state-
ment of an anonymous informant). Additionally, the victim’s ac-
count was supported by the 9mm shell casings found in the road-
way in front of 718 Monroe Street. These facts supported the re-
quired connection between the property and the criminal activity,
as it served as the path of egress from the crime scene for the sus-
pect. See United States v. Martin,
297 F.3d 1308, 1314 (11th Cir.
2002) (stating the affidavit should establish a connection between
the residence and any criminal activity). Additionally, the affidavit
noted Berry’s residence had exterior cameras, and “at least one of
the cameras on the residence point[ed] towards the area where the
shooting occurred.” These facts provided the magistrate judge am-
ple basis for finding probable cause, as they indicated a fair proba-
bility that physical evidence from the suspect fleeing the scene and
video evidence of the crime itself would be found on the property.
See Gibson, 708 F.3d at 1278.
2. Good Faith Exception
The exclusionary rule is a judicially created remedy designed
to safeguard Fourth Amendment rights through its deterrent effect
and requires evidence obtained through an illegal search not be
used by the government in a subsequent criminal prosecution.
Martin,
297 F.3d at 1312. The Supreme Court created a good-faith
exception to this rule, stating courts generally should not hold in-
admissible evidence obtained by officers acting in reasonable reli-
ance upon a search warrant later found to be unsupported by
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21-14221 Opinion of the Court 5
probable cause or technically insufficient. United States v. Leon,
468 U.S. 897, 922 (1984). “Searches pursuant to a warrant will
rarely require any deep inquiry into reasonableness, for a warrant
issued by a magistrate normally suffices to establish that a law en-
forcement officer has acted in good faith in conducting the search.”
Id. (quotation marks, alterations, and citation omitted).
The Leon “good-faith” exception does not apply where the
warrant is so lacking in indicia of probable cause that official belief
in its validity is entirely unreasonable.
Id. at 923. The good-faith
exception requires suppression of the evidence only if the law en-
forcement officers executing the warrant in question “were dishon-
est or reckless in preparing their affidavit, or could not have har-
bored an objectively reasonable belief in the existence of probable
cause.” Martin,
297 F.3d at 1313.
Even if the original search warrant had lacked probable
cause, the good faith exception applies. For the reasons discussed
above, the search warrant was not so lacking in indicia of probable
cause that official belief in its validity was entirely unreasonable.
Leon,
468 U.S. at 923. Additionally, there is no evidence in the rec-
ord showing the officers acted dishonestly in preparing the affida-
vit. Martin,
297 F.3d at 1313. As such, the district court did not err
in finding the “good-faith” exception applied. Leon,
468 U.S. at
922-23.
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6 Opinion of the Court 21-14221
B. Rule 11
“[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 addition, all Rule
11 violations are subject to harmless error review. See Fed. R.
Crim. P. 11(h). A Rule 11 error is harmless “if it does not affect
substantial rights.”
Id.
Under Rule 11, the district court must address the defendant
personally in open court and inform the defendant of, and deter-
mine that, he understands the nature of the charge to which the
plea is offered and the potential consequences of that plea. United
States v. Lewis,
115 F.3d 1531, 1535 (11th Cir. 1997). The rule re-
quires a district court to conduct a searching inquiry into the vol-
untariness of a defendant’s guilty plea. United States v. Siegel,
102
F.3d 477, 481 (11th Cir. 1996). To determine whether a guilty plea
is knowing and voluntary, a court accepting it must comply with
the three “core concerns” of Rule 11 by ensuring that: (1) the guilty
plea is free from coercion; (2) the defendant understands the nature
of the charges; and (3) the defendant understands the direct conse-
quences of his plea. United States v. Presendieu,
880 F.3d 1228,
1238 (11th Cir. 2018).
To comply with the third core concern, the district court
must inform the defendant of the rights that he is giving up by
pleading guilty, including the court’s authority to impose certain
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21-14221 Opinion of the Court 7
punishments. United States v. Moriarty,
429 F.3d 1012, 1019 (11th
Cir. 2005); see also Fed. R. Crim. P. 11(b)(1). The court plainly errs
when it inaccurately advises a defendant on the potential punish-
ments he is facing during the plea hearing. United States v. Brown,
586 F.3d 1342, 1346 (11th Cir. 2009). However, where a defendant
fails to object to the PSI’s correct statement concerning the appli-
cable punishments, he indicates, through his conduct, that his “sub-
stantial rights were not harmed by the district court's error during
the plea hearing.”
Id.
It is uncontested that the magistrate judge erred by incor-
rectly advising Berry of the punishments he faced on Count 5, and
that this error was plain. 3 However, Berry has failed to show this
error affected his substantial rights. See United States v. Castro,
455 F.3d 1249, 1253 (11th Cir. 2006) (stating to establish plain error,
a defendant must show that there was an (1) error, (2) that is plain,
and (3) that affects substantial rights). First, Berry failed to object
to the PSI which contained the correct punishment information,
thus indicating through his conduct that his substantial rights were
not harmed. Brown,
586 F.3d at 1346.
Additionally, Berry has not shown there is a reasonable
probability that, but for the error, he would not have entered the
plea. Dominguez-Benitez,
542 U.S. at 83. Rather, the record
3 Where the defendant neither objects to the plea proceedings nor moves to
withdraw the plea, we review the district court’s compliance with Rule 11 for
plain error. United States v. Monroe,
353 F.3d 1346, 1349 (11th Cir. 2003).
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8 Opinion of the Court 21-14221
indicated he expected a potential sentence of 188 months’ impris-
onment. Specifically, when asked if the plea agreement repre-
sented in its entirety the understanding that Berry had with the
Government, Berry responded “I’m hoping I’m understanding that
I’m going to be sentenced to around 188 months.” The magistrate
judge corrected Berry as the plea agreement did not specify a spe-
cific total sentence. Nonetheless, Berry’s statement shows he knew
the 188-month sentence he ultimately received was a possibility.
Despite this, Berry entered the plea. Berry’s argument his substan-
tial rights were affected because he intended to challenge the ap-
plicability of the armed career criminal enhancement to Count 6 is
unconvincing given that he knew he potentially faced this total sen-
tence and he indicated through his failure to object to the PSI that
the mistake had not harmed his substantial rights. As such, Berry
has failed to show the magistrate judge’s error affected his substan-
tial rights. Castro,
455 F.3d at 1253.
II. CONCLUSION
The district court did not err in denying Berry’s motion to
suppress because there was probable cause for the search of the
property. Additionally, the magistrate judge who presided over
Berry’s change of plea hearing did not plainly err in failing to
strictly comply with Federal Rule of Criminal Procedure 11 be-
cause the error did not affect Berry’s substantial rights. Accord-
ingly, we affirm.
AFFIRMED.
