United States v. Kenneth Brown , 583 F. App'x 373 ( 2014 )

Case: 14-60053 Document: 00512816131 Page: 1 Date Filed: 10/27/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60053
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
October 27, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff–Appellee,
v.
KENNETH CEDRIC BROWN,
Defendant–Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:13-CR-57
Before SMITH, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
Kenneth Cedric Brown appeals his guilty plea conviction for sexually
exploiting a minor by production of sexually explicit material. He argues that
the district court plainly erred in failing to advise him of his right to plead not
guilty and to persist in a not-guilty plea, in violation of Federal Rule of
Criminal Procedure 11(b)(1)(B).
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-60053 Document: 00512816131 Page: 2 Date Filed: 10/27/2014
No. 14-60053
As Brown concedes, he did not raise this issue in the district court and,
therefore, review is limited to plain error. 1 To show plain error, Brown must
show a forfeited error that is clear or obvious and that affects his substantial
rights. 2 If he makes such a showing, this court has the discretion to correct
the error, but should do so only if the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings. 3 To demonstrate an
effect on his substantial rights based on the district court’s failure to comply
with Rule 11, Brown “must show a reasonable probability that, but for the
error, he would not have entered the plea.” 4
At rearraignment, the district court did not advise Brown that he had
the right to plead not guilty or to persist in a not-guilty plea. 5 However, such
admonishment was implicit in the court’s inquiry whether Brown understood
the consequences of choosing to plead guilty, whether he wished to waive his
constitutional rights and enter a guilty plea, and whether, after being advised
of the factual basis, he wished to plead guilty or not guilty. 6 Nothing in the
record indicates that the district court’s omission was a factor that affected
Brown’s decision to plead guilty. On appeal, Brown does not argue that he
would not have pleaded guilty if the district court had advised him that he had
the right to plead not guilty and to persist in a not-guilty plea. Because Brown
has not shown that the district court’s failure to advise him of his right to plead
1 See Puckett v. United States, 556 U.S. 129, 135 (2009).
2 See id.
3 See id.
4 United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
5 See FED. R. CRIM. P. 11(b)(1)(B).
6 See United States v. Bachynsky, 949 F.2d 722, 726 (5th Cir. 1991) (holding that
district court’s failure to advise defendant of right to plead not guilty and right against self-
incrimination were implicit in the court’s discussion of the rights he would lose if he pleaded
guilty).
2
Case: 14-60053 Document: 00512816131 Page: 3 Date Filed: 10/27/2014
No. 14-60053
not guilty affected his decision to plead guilty, Brown has not shown that the
omission affected his substantial rights. 7 Brown’s reliance on United States v.
Neal, 509 F. App’x 302 (5th Cir. 2013), cert. denied, 134 S. Ct. 183 (2013), is
misplaced as it is distinguishable. 8 Therefore, Brown has not shown plain
error. 9
AFFIRMED.
7 See Dominguez Benitez, 542 U.S. at 83.
8See United States v. Neal, 509 F. App’x 302, 307-10 (5th Cir. 2013), cert. denied, 134
S. Ct. 183 (2013) (concluding that there was plain error in case in which defendant had
mental and physical health issues that were evident at the rearraignment, and when asked
by defendant, district court erroneously advised him that he could not plead guilty to some
charges and not guilty to other charges).
9 See Dominguez Benitez, 542 U.S. at 83.
3