                                                                    [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                    FOR THE ELEVENTH CIRCUIT
                                                                             FILED
                         -------------------------------------------U.S. COURT OF APPEALS
                                      No. 03-13614                    ELEVENTH CIRCUIT
                                                                      SEPTEMBER 6, 2005
                              Non-Argument Calendar
                                                                       THOMAS K. KAHN
                        --------------------------------------------        CLERK

                      D.C. Docket No. 03-10009-CR-KMM

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                          versus

CHARLTON STEELE,

                                                         Defendant-Appellant.

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                 Appeal from the United States District Court
                      for the Southern District of Florida
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                                (September 6, 2005)

Before EDMONDSON, Chief Judge, TJOFLAT and PRYOR, Circuit Judges.


PER CURIAM:


      Defendant-Appellant Charlton Steele cites errors and omissions in the Rule

11 proceedings at which he pled guilty to drug trafficking conspiracy charges, and
he requests that we remand to allow him the opportunity to plead anew. Because

we conclude that those errors, although plain, made no difference in the outcome

of the Rule 11 proceedings, no reversible plain error has been shown.

      The facts of the underlying offense are uncontested. Two female co-

defendants exited a cruise ship in Key West, Florida, and were found to have 31

kilograms of cocaine strapped to their bodies. When questioned, the co-

defendants identified Defendant as the person on board the cruise ship who had

provided them the cocaine. Agents boarded the cruise ship and took Defendant

into custody. Defendant was arrested and later indicted by the grand jury on one

count of conspiracy to possess with intent to distribute five or more kilograms of

cocaine, 21 U.S.C. §§ 841 and 846; and one count of possession with intent to

distribute five or more kilograms of cocaine, 21 U.S.C. § 841.

      Defendant cooperated with the government and also entered into a plea

agreement. In the first of what proved to be a series of errors about the charges

against him, the plea agreement provided that Defendant would plead guilty to

Count 1 of his indictment -- conspiring to import cocaine, in violation of 21

U.S.C. §§ 963 and 960(b)(1) -- and the remaining three counts would be dismissed

at sentencing. That the indictment charged no importation violation, and that the




                                         2
indictment contained two -- not four -- counts, went unnoticed by the prosecution

and the defense.

      At the plea colloquy, the district court established that Defendant had

received a copy of the indictment and had discussed the charges fully with his

lawyer. The Defendant also acknowledged that he had read and discussed the plea

agreement with his lawyer. The government provided a factual basis for the

offense that included the facts we have recited. Also, agents found $1,300 on

Defendant at the time of his arrest that had been given to him by one of his drug

contacts. Post-arrest, Defendant said that he was on the ship for the purpose of

delivering the cocaine to the co-defendants and that it was Defendant who told the

co-defendants how to deliver the cocaine and strapped it on their bodies.

Defendant told the court that the evidence presented by the government was

correct.

      The court did not read the indictment to Defendant, did not explain the

elements of the offense to which he was pleading, or otherwise discuss the charge

with him at the Rule 11 proceedings. The judge -- we suppose misled by the

erroneous mention of importation in the plea agreement -- asked Defendant how

he wished to plead to Count 1 of the indictment, and the judge identified that




                                         3
charge as an importation offense in violation of 21 U.S.C. § 963. Defendant pled

guilty; the court accepted his plea.

      The misidentification of the count to which Defendant pled guilty recurred

in the presentence investigation report (“PSI”). The introductory section stated

that Defendant had pled guilty to an importation count, although it correctly stated

the code section violated as 21 U.S.C. § 846. Twice more the PSI referenced the

violation as an importation crime: once more it cited 21 U.S.C. § 846, and one

time it cited 21 U.S.C. §§ 963 and 960(b)(1).

      Defendant at sentencing raised the “typographical error” in the plea

agreement. Defendant told the court that the plea agreement should have referred

to 21 U.S.C. §§ 841 and 846, instead of 21 U.S.C. §§ 960 and 963. Defendant

called the error to the court’s attention only because it was picked up in the PSI.

Defendant expressed no confusion about what he had pled guilty to and expressed

no desire to withdraw his plea. The court said that it would have the probation

officer correct the PSI. When, however, the written judgment issued, it too was

internally inconsistent and repeated an erroneous importation reference. The

judgment provided that Defendant was convicted of conspiracy to import cocaine

in violation of 21 U.S.C. §§ 841 and 846.




                                          4
      Defendant filed a motion in the district court, pursuant to Fed.R.Crim.P. 36,

to correct the “clerical mistake” in the judgment and to confirm Defendant’s

conviction and sentence. The motion stated that “the judgment incorrectly

state[d] that the nature of the offense for which Mr. Steel is convicted was

‘conspiracy to import’...” (Emphasis in original). In the motion, counsel opined

that he could identify no way that the error adversely affected Defendant; but

counsel sought correction so that no problem would arise when he submitted his

motion to withdraw pursuant to Anders v. California, 87 S.Ct. 1396 (1967), in this

Court. Again Defendant voiced no dissatisfaction with his plea of guilty to the §§

841 and 846 conspiracy to traffick offense. The government agreed that the

clerical error should be corrected. The district court issued an amended order

correcting the order of judgment and accurately described the offense committed

and the code sections violated.

      This Court denied Defendant’s lawyer’s motion to withdraw and directed

briefing on the issue of whether the district court plea hearing satisfied the second

core concern under Fed.R.Crim.P. 11: the defendant’s understanding of the nature

of the charge against him. A merits brief was filed on behalf of Defendant in

which Defendant recited the errors we have outlined and argued that the district

court’s failure to assure that Defendant understood the nature and the elements of

                                          5
the charge of conspiracy to possess cocaine -- the actual charge in Count 1 of the

indictment to which Defendant pled guilty -- required that Defendant be given the

opportunity to withdraw his plea and to plead anew.

      This Court has identified three core concerns when reviewing Rule 11

proceedings: whether (1) the guilty plea was voluntary; (2) the defendant

understood the nature of the charges against him; and (3) the defendant understood

the consequences of his plea. See, e.g., United States v. Lejarde-Rada, 319 F.3d

1288, 1289 (11th Cir. 2003) (quoting United States v. Mosley, 173 F.3d 1318,

1322 (11th Cir. 1999). When no objection is made to a Rule 11 violation in the

district court, plain error review applies on appeal. United States v. Vonn, 122

S.Ct. 1043, 1046 (2002).

      Under plain error review, a defendant must show (1) “error,” (2) that is

“plain,” and (3) that “affect[s] substantial rights.” See United States v. Olano, 113

S.Ct. 1770, 1777-78 (1993). Only after error that is plain and affects substantial

rights has been shown, may an appellate court exercise its discretion to notice the

forfeited error and, then, only if the error “seriously affect[s] the fairness, integrity,

or public reputation of judicial proceedings.” Johnson v. United States, 117 S.Ct.

1544, 1549 (1997) (internal quotations and citations omitted). And, “[u]nder

plain-error review, the silent defendant has the burden ‘to show the error plain,

                                            6
prejudicial, and disreputable to the judicial system.’” United States v. Monroe, 353

F.3d 1346, 1349-50 (11th Cir. 2003) (quoting Vonn, 122 S.Ct. at 1050).

      Defendant has shown “error” that is “plain:” the district court failed

adequately to address the nature of the charge to which Defendant was pleading.

The district court and the plea agreement misstated or cited inconsistently the

Count 1 offense.

      This Court traditionally has assumed substantial rights were violated and

reversible plain error shown when the district court failed entirely to address a

core Rule 11 concern. See, e.g., United States v. Telemaque, 244 F.3d 1247, 1249

(11th Cir. 2001) (“Any failure to address one of Rule 11(c)’s three ‘core concerns,’

of which informing the defendant of the nature of the offense is one, is prejudicial

plain error.)”. And we have vacated convictions and remanded for further

proceedings when a core concern was not addressed adequately. See id.; United

States v. Quinones, 97 F.3d 473, 475 (11th Cir. 1996). Based on our existing

caselaw, the government initially conceded that Defendant had met his burden of

demonstrating plain error: the Rule 11 colloquy, combined with errors in the plea




                                          7
agreement, failed to assure that Defendant understood the nature of the charges to

which he was pleading.1

        After briefing on this appeal was complete, the Supreme Court decided

United States v. Dominguez Benitez, 124 S.Ct. 2333 (2004). In Dominguez

Benitez, the Supreme Court wrote these words:

               We hold, therefore, that a defendant who seeks reversal
               of his conviction after a guilty plea, on the ground that
               the district court committed plain error under Rule11,
               must show a reasonable probability that, but for the
               error, he would not have entered the plea. A defendant
               must thus satisfy the judgment of the reviewing court,
               informed by the entire record, that the probability of a
               different result is sufficient to undermine confidence in
               the outcome of the proceeding.

Id. at 2340 (internal quotation and citation omitted). The Supreme Court

explained that the reasonable-probability standard would take into consideration

record evidence that shed light on the relative significance of the Rule 11 error on

the defendant’s plea decision: later protests by the defendant (for example, at

sentencing), the overall strength of the government’s case, and possible defenses

that appear from the record. Id. at 2341. The Supreme Court disavowed an intent



    1
      The government noted that the Supreme Court had granted certiorari in United States v.
Dominguez Benitez, 124 S.Ct. 921 (2003), on the issue of whether a defendant, to establish
reversible plain error, must show that he would not have pleaded guilty if the Rule 11 violation of
which he complains had not occurred.

                                                8
to second-guess a defendant’s actual decision, but it also recognized the obvious:

when the record made for a guilty plea and sentencing reveals strong evidence and

no apparent defenses, “one can fairly ask a defendant seeking to withdraw his plea

what he might ever have thought he could gain by going to trial.” Id.

      The record here does not persuade us that a reasonable probability exists

that the district court’s failure to identify correctly and consistently the nature of

the charge against Defendant (albeit unfortunate and regrettable) actually impacted

on Defendant’s plea decision. The facts presented by the government at the plea

colloquy would have permitted a conspiracy-to-possess-with-intent-to-distribute

conviction as readily as they would have permitted a conspiracy-to-import

conviction. No defenses are apparent on the face of the record or mentioned in the

appellate briefs. At sentencing, in Defendant’s presence, Defendant’s lawyer

clarified that Count 1 of the indictment -- the count to which Defendant pled guilty

-- charged a violation of 21 U.S.C. §§ 841 and 846; reference to code sections 963

and 960(b)(1) in the plea agreement and PSI were characterized as incorrect

“typographical” errors. Defendant testified at some length at the sentencing

proceedings but expressed no confusion, unhappiness or desire to disavow his

plea. The earlier errors had no impact on sentencing, and the judgment of

conviction has been corrected to reflect the crime for which Defendant was

                                           9
indicted and for which, we conclude, the record shows Defendant intended to

plead.

         Even at this stage of the proceedings, nothing in the record suggests that

Defendant -- who received a two level safety valve reduction, a two level

adjustment for acceptance of responsibility, and a one level reduction because he

cooperated with the government and timely notified the government of his intent

to plead guilty -- perceives himself to be prejudiced by the entry of his guilty plea.

Nothing indicates a desire to go to trial. Defendant’s lawyer, at our behest, argues

only that Defendant should be given the opportunity to plea anew.

         We do not say that the mistakes attending the nature of the offense in the

present case were trifling. Nor do we suggest that district courts are not obligated

to assure that a defendant entering a plea understands the offense with which he is

charged. We do, however, conclude that this case is distinguishable from other

Rule 11 cases where we have reversed based on a wholesale failure to satisfy the

nature of the offense core concern.2 Given Defendant’s silence when the mistakes


  2
    As the Monroe court noted, in the plain error cases where we have concluded that a Rule 11 error
warrants relief, the violations resulted in “a total or almost total failure to address a Rule 11 core
concern.” 353 F.3d at 1355. Because (i) the district court did assure in the plea colloquy that the
charges were discussed fully by Defendant and his counsel; and (ii) the discussion at sentencing
clarified the nature of the offense, this case is no wholesale failure case. We leave to another day
a fuller exploration of the impact of Dominguez-Benitez’s reasonable probability standard on our
Rule 11 core-concern-plain-error jurisprudence.

                                                 10
about the offense of conviction were clarified, coupled with the teaching of

Dominguez Benito, we are unconvinced that a reasonable probability exists that

the district court’s errors and omissions made a difference to Defendant’s plea

decision. The requirements for plain error relief are not satisfied3.

       AFFIRMED.




  3
    The Dominguez Benitez decision allows, although in dicta, that the reasonable-probability test
would not save a conviction obtained by guilty plea if the record contained no evidence that the
defendant knew of the rights he was waiving. Because we conclude that this is not a “no evidence”
case, we need not explore the contours of this potential exception to the rule announced in
Dominquez Benitez.

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