     Case: 18-40813      Document: 00515050133         Page: 1    Date Filed: 07/25/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                    No. 18-40813                           FILED
                                  Summary Calendar                     July 25, 2019
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DEREK MYLAN ALLDRED,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:17-CR-105-1


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Derek Mylan Alldred appeals his guilty plea conviction for two counts of
aggravated identity theft and one count of mail fraud. Alldred was sentenced
to the statutory maximum of 288 months imprisonment: 24 months on each
count of aggravated identity theft and a 240-month term for the mail fraud
count. Alldred argues he did not knowingly enter his plea because he was not
correctly advised of his maximum sentencing exposure as required by Rule 11



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40813    Document: 00515050133     Page: 2   Date Filed: 07/25/2019


                                 No. 18-40813

of the Federal Rules of Criminal Procedure. According to Alldred, the plea
agreement and the magistrate judge incorrectly indicated that the identity
theft counts were “grouped” together and carried a maximum of 24 months,
not that there were 24-month maximums for each count that could run
consecutively. Alldred contends this renders his plea involuntary and invalid.
      Because Alldred did not object, we review for plain error. United States
v. Vonn, 535 U.S. 55, 59 (2002); Puckett v. United States, 556 U.S. 129, 135
(2009).   To succeed, he must show a clear or obvious error affected his
substantial rights and “seriously affect[ed] the fairness, integrity or public
reputation of judicial proceedings.” Puckett, 556 U.S. at 135 (citation omitted).
Under Rule 11, a defendant is entitled to be informed by the district court
of “the maximum possible penalty applicable to each count to which the
defendant is pleading guilty.” United States v. Still, 102 F.3d 118, 123 (5th
Cir. 1996).   We find it unnecessary to decide if the magistrate judge’s
explanation was ambiguous, i.e., whether the more reasonable interpretation
is that his total possible sentence was 264 months or 288 months. We instead
rely on the point that his substantial rights were affected only if there is “a
reasonable probability that, but for the error, he would not have entered the
plea.” United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004). We turn to
that issue.
      At the sentencing hearing, Alldred stated that he had reviewed and
discussed the presentence report (PSR) with his counsel and that he
understood the report, which specifically reflected that Count 3 and Count 4
each carried a penalty of a term of imprisonment of 24 months, to run
consecutively. He filed no objections to the stated penalty. Nor did Alldred or
his counsel object during the sentencing after both the district court and the
Government repeated that 24 months was the penalty for each of those counts.



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                                  No. 18-40813

      This court has held that a defendant’s knowledge of the correct penalties
gained after reviewing the PSR along with the absence of any objections or a
motion to withdraw the defendant’s guilty plea indicates that any error in the
admonishment regarding potential penalties prior to the defendant’s plea was
not a significant factor in his decision to plead guilty. See United States v.
Alvarado-Casas, 715 F.3d 945, 955 (5th Cir. 2013). The record as a whole,
then, demonstrates there is not a reasonable probability that Alldred would
not have pled guilty absent the district court’s alleged error. Alldred has failed
to demonstrate that his substantial rights were affected and, thus, he has not
shown plain error. See Puckett, 556 U.S. at 135.
      AFFIRMED.




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