USA v. Paul Jarrod Anthony

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11666
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-20731-JIC-11
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL JARROD ANTHONY,
a.k.a. PJ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 31, 2018)
Before MARTIN, JILL PRYOR and BLACK, Circuit Judges.
PER CURIAM:
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Paul Anthony appeals his conviction for conspiring to possess cocaine with
the intent to distribute in violation of 21 U.S.C. § 846. Anthony contends for the
first time on appeal that the district court erred by failing to advise him during his
plea colloquy that his sentence could be enhanced under the relevant career
offender guidelines. Anthony also asserts the government breached his plea
agreement by affirmatively misleading him as to the sentence that he would
receive. After review, we affirm.
I. The Plea Colloquy
A court accepting a guilty plea must address three core concerns underlying
Federal Rule of Criminal Procedure 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. Jones, 143 F.3d 1417, 1418-19 (11th Cir. 1998) (quotation omitted).
Anthony contends the district court violated both Rule 11 and his right to due
process, citing its failure to disclose, during Anthony’s plea colloquy, that his
sentence would likely be enhanced pursuant to the career offender guideline
provisions.
As Anthony did not raise this alleged Rule 11 violation before the district
court, our review is for plain error. United States v. James, 210 F.3d 1342, 1343
(11th Cir. 2000). The same standard of review applies to Anthony’s unpreserved
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due process claim. United States v. Orisnord, 483 F.3d 1169, 1176 n.3 (11th Cir.
2007). “It is the law of this Circuit that, at least where the explicit language of a
statute or rule does not specifically resolve an issue, there can be no plain error
where there is no precedent from the Supreme Court or this Court directly
resolving it.” United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir.
2003).1 Anthony has not identified any portion of Rule 11 (or any other rule or
statute) requiring a district court to inform a defendant during his plea colloquy
that he will likely receive a career offender enhancement. Nor has Anthony
identified any precedent from the Supreme Court or this Court imposing such a
requirement. Accordingly, our precedent dictates that the district court did not
plainly err.
II. The Plea Agreement
“Whether the government violated the [plea] agreement is judged according
to the defendant’s reasonable understanding at the time he entered the plea.”
United States v. Rewis, 969 F.2d 985, 988 (11th Cir. 1992). If the Government
disputes the defendant’s understanding, we determine the terms of the plea
agreement according to objective standards. Id. Again, because Anthony did not
raise the Government’s alleged breach of his plea agreement before the district
1 Under our prior precedent rule, a panel cannot overrule a prior panel’s holding unless
and until that holding is overruled by this Court sitting en banc, or by the Supreme Court.
United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998).
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court, our review is for plain error. United States v. De La Garza, 516 F.3d 1266,
1269 (11th Cir. 2008).
Here, the Government did not breach the plea agreement. Although the plea
agreement states that the offense level associated with the quantity of cocaine that
Anthony possessed was 24, it emphasizes that the Government is not promising a
sentence based on that offense level. To the contrary, it provides:
defendant is also aware that any estimate of the probable
sentencing range . . . whether that estimate comes from . .
. the government . . . is a prediction, not a promise, and is
not binding on the government . . . or the court.
(emphasis added). The plea agreement explains that the district court will compute
an advisory sentence after considering the Federal Sentencing Guidelines and
Policy Statements and the Pre-Sentence Investigation Report, which will be
prepared only after the plea is entered. The plea agreement also stresses that the
court can depart from whatever advisory sentence it computes and impose up to a
statutory maximum term of twenty years’ imprisonment.
Given those express terms, which Anthony reviewed, stated that he
understood, and agreed to, it would have been unreasonable for Anthony to have
expected that he would be sentenced based on an offense level of 24. Because it
would have been unreasonable for him to have expected such a sentence, Anthony
has not shown that receipt thereof was a term of his plea agreement.
AFFIRMED.
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