USA v. Milton Paulk

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12408
Non-Argument Calendar
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D. C. Docket No. 6:11-cr-00207-CEH-GJK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MILTON PAULK,
Defendant-Appellant.
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Appeal from the United States District Court
For the Middle District of Florida
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(February 15, 2013)
Before BARKETT, MARTIN and EDMONDSON, Circuit Judges.
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PER CURIAM:
Milton Paulk appeals his 180-month sentence, imposed after he pleaded
guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§
922(g)(1), 924(a)(2). No reversible error has been shown; we affirm.
Before Paulk’s change-of-plea hearing, the government filed a “Notice of
Essential Elements, Maximum Penalties and Factual Basis” that said, among other
things, that Paulk’s offense carried a statutory maximum sentence of ten years’
imprisonment. During Paulk’s change-of-plea hearing, the magistrate judge also
told Paulk that he was subject to a maximum prison sentence of ten years. Paulk
pleaded guilty without a written plea agreement, and the magistrate judge
recommended that Paulk’s plea be accepted. The district court accepted Paulk’s
plea and adjudged him guilty.
In preparing Paulk’s Presentence Investigation Report, the probation officer
discovered that Paulk had additional convictions -- of which the government had
been unaware -- for violent felonies and serious drug offenses. Based on these
convictions, the probation officer determined that Paulk qualified as an armed
career criminal under the Armed Career Criminal Act (“ACCA”) and, thus, was
subject to a statutory mandatory minimum sentence of 15 years’ imprisonment.
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Paulk filed an unopposed motion to withdraw his guilty plea, arguing that
the magistrate judge had advised him incorrectly about the potential penalties he
faced.
At a hearing on his motion, the district court agreed that Paulk could
withdraw his plea.
But Paulk declined to do so. The court told Paulk that the magistrate judge
had been incorrect about the ten-year maximum sentence. The court explained that
-- because Paulk qualified as an armed career criminal -- he was subject to a
mandatory minimum sentence of 15 years’ imprisonment. Paulk said that he
understood but that he did not want to withdraw his plea. Paulk also preserved the
right to object during his sentencing hearing to a sentence greater than ten years’
imprisonment. Because Paulk withdrew his motion to withdraw his plea, the court
denied the motion as moot.
Later, at the sentencing hearing, Paulk -- conceding that he had no legal
authority to support his position -- sought specific performance of his “plea
agreement” which he alleged included a ten-year maximum sentence. The court
overruled the objection and sentenced Paulk to 180 months’ imprisonment.
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On appeal, Paulk contends that the government breached its plea agreement
by seeking a sentence that exceeded ten years’ imprisonment.* We review de novo
whether the government has breached a plea agreement. United States v. De La
Garza, 516 F.3d 1266, 1269 (11th Cir. 2008).
The government is bound by promises it makes to a defendant to induce the
defendant to plead guilty. United States v. Johnson, 132 F.3d 628, 630 (11th Cir.
1998). “To determine whether the government breached the plea agreement, we
must first determine the scope of the government’s promises.” Raulerson v.
United States, 901 F.2d 1009, 1011 (11th Cir. 1990).
As a threshold matter, we see no binding plea agreement between Paulk and
the government. That no written plea agreement exists is clear. And nothing
evidences that Paulk pleaded guilty pursuant to an oral plea agreement. During the
change-of-plea hearing, the magistrate judge asked Paulk whether anyone had
promised him anything in exchange for his guilty plea. Paulk replied only that,
before his plea, his lawyer had told him that he did not qualify for an ACCA
enhancement.
Although the government’s “Notice of Essential Elements, Maximum
Penalties and Factual Basis” said that Paulk’s offense was “punishable by a term of
*
Paulk does not challenge the district court’s conclusion that he qualifies as an “armed career
offender” under the ACCA. He also does not contend that his guilty plea was unknowing or
involuntary or that the district court violated Fed.R.Civ.P. 11.
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not more than 10 years,” the government made no promises about the length of
sentence it would request or about whether it would seek an enhancement under
the ACCA. Because Paulk fails to show that the government promised to avoid
seeking a sentence exceeding ten years, he cannot show a breach.
In addition, when a defendant qualifies as an armed career criminal, the
ACCA requires district courts to impose an enhanced sentence “regardless of
whether the Government affirmatively seeks such enhancement.” See United
States v. Cobia, 41 F.3d 1473, 1475-76 (11th Cir. 1995).
AFFIRMED.
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