                Case: 17-10745    Date Filed: 03/21/2018   Page: 1 of 6


                                                               [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 17-10745
                              Non-Argument Calendar
                            ________________________

                     D.C. Docket No. 1:15-cr-00443-SCJ-JFK-1


UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee,

versus

CHERYL SINGLETON,

                                               Defendant - Appellant.
                            ________________________

                     Appeal from the United States District Court
                        for the Northern District of Georgia
                           ________________________

                                  (March 21, 2018)

Before WILLIAM PRYOR, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:

         Cheryl Singleton pled guilty to one count of wire fraud in violation of 18

U.S.C. § 1343. On appeal, Ms. Singleton argues that her guilty plea was not
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knowing and voluntary because the district court failed to conduct an additional

Rule 11 plea colloquy after she and the government entered into a joint stipulation

regarding the pre-sentence investigation report. As part of the joint stipulation,

Ms. Singleton agreed to withdraw and waive all objections to the report, which she

contends constituted a modification of the plea agreement. Because there was no

modification to the plea agreement, we affirm.

                                         I

      Ms. Singleton owned and operated a tax preparation business in Atlanta,

Georgia, through which she perpetrated extensive fraudulent schemes resulting in a

loss to the government of approximately $20 million. Ms. Singleton also

personally defrauded several businesses through bank loan and credit card scams.

Consequently, Ms. Singleton was indicted on numerous charges of wire fraud (18

U.S.C. § 1343), aggravated identity theft (18 U.S.C. §§ 1028A(a)(1), (c)(5)), and

submitting false claims against the IRS (18 U.S.C. § 287).

      In August of 2016, Ms. Singleton pled guilty to one count of wire fraud in

violation of 18 U.S.C. § 1343. As part of Ms. Singleton’s negotiated plea

agreement, the government agreed to dismiss 34 counts against Ms. Singleton, to

bring no additional charges against her, and to recommend that she receive a three-

level reduction for acceptance of responsibility under the Sentencing Guidelines.

See U.S.S.G. § 3E1.1. Ms. Singleton agreed, among other things, to waive her

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rights of appeal and collateral attack as to her conviction and sentence. The plea

agreement was silent as to the appropriate Sentencing Guidelines range and

acknowledged that both parties reserved the right to make recommendations

regarding the application of the guidelines. The district court established that Ms.

Singleton understood the terms of her plea agreement and that her guilty plea was

knowing and voluntary during a Rule 11 plea colloquy.

       After receiving the pre-sentence investigation report in October of 2016, Ms.

Singleton and the government each filed objections to the Sentencing Guidelines

calculation.1     In January of 2017, one week after Ms. Singleton filed her

objections, both parties agreed to withdraw and waive their objections, and the

government agreed to recommend a sentence of no greater than 150 months’

imprisonment. The parties memorialized their agreement in a written joint

stipulation which they filed with the court.

       At the sentencing hearing, the district court accepted the parties’ joint

stipulation, adopted the pre-sentence investigation report, and concluded that the

applicable Sentencing Guidelines range was 188–235 months’ imprisonment. Ms.

       1
          Specifically, in November of 2016, the government objected to the loss amount and the
failure to apply an obstruction of justice enhancement, and withdrew its recommendation that
Ms. Singleton receive a third point for acceptance of responsibility because Ms. Singleton
violated her plea agreement by selling assets without the government’s approval. For her part, in
January of 2017, Ms. Singleton objected to the use of U.S.S.G. § 2B1.1(a) as the applicable
guideline (rather than § 2T1.1), the loss amount, the enhancement for more than ten victims, the
enhancement for sophisticated means, the enhancement for use of five or more means of
identification, the enhancement for obstruction of justice, and the failure to award a third point
for acceptance of responsibility.
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Singleton and the government agreed that the district court’s Sentencing

Guidelines calculation was correct. Pursuant to the joint stipulation, the

government recommended a 150-month sentence. The district court sentenced Ms.

Singleton to 150 months’ imprisonment, a three-year term of supervised release,

restitution in the amount of $5,100,129.41, and a $100 special assessment. Neither

Ms. Singleton nor the government objected to the sentence.

                                         II

      Where, as here, a defendant does not move to withdraw her plea in the

district court or otherwise preserve a Rule 11 objection, we review for plain error.

See United States v. Brown, 586 F.3d 1342, 1345 (11th Cir. 2009). To establish

plain error, the defendant must show a clear error that prejudiced her by affecting

her substantial rights.   Id.   Prejudice in this context means “a reasonable

probability that, but for the error, [she] would not have entered the plea.” United

States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). Even if the defendant carries

her burden of establishing clear, prejudicial error, “we may not remedy that error

unless it seriously affects the fairness, integrity or public reputation of judicial

proceedings.” Brown, 586 F.3d at 1345 (internal citations removed).

                                        III

      Ms. Singleton does not dispute that her guilty plea was knowing and

voluntary when she tendered it on August 2, 2016. Nor does she claim that the

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district court failed to comply with Rule 11. Instead, Ms. Singleton argues that by

entering into the joint stipulation and agreeing to withdraw and waive her initial

sentencing objections, she altered a term of the plea agreement which had reserved

her right to “make recommendations” regarding the application of the Sentencing

Guidelines. In her view, the joint stipulation modified the plea agreement, and the

district court was therefore required to conduct a second Rule 11 plea colloquy

before accepting the joint stipulation at sentencing.

      Despite Ms. Singleton’s assertion to the contrary, the joint stipulation did

not alter or modify the plea agreement. Ms. Singleton’s plea agreement did not

make any recommendations as to sentencing. In fact, it left both parties free to

make recommendations as to the Sentencing Guidelines. By entering into the joint

stipulation, Ms. Singleton merely agreed to exercise her right not to assert certain

arguments in exchange for a favorable sentencing recommendation from the

government.     In reality, Ms. Singleton could have opted not to assert any

arguments at all. Ultimately, Ms. Singleton’s decision to exercise her rights under

the plea agreement in this way benefited her significantly during sentencing—she

received the 38-month downward variance that she bargained for.

      What’s more, even assuming that the joint stipulation did somehow

constitute a modification of the plea agreement, Ms. Singleton has not argued that

she would have attempted to withdraw her guilty plea and go to trial on all 35

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original counts had she received a second plea colloquy. Therefore, it is unclear

how, if at all, Ms. Singleton can establish prejudice in this context.

                                          IV

      The district court did not err when it accepted the parties’ joint stipulation at

sentencing without conducting a second Rule 11 plea colloquy. Accordingly, we

affirm Ms. Singleton’s sentence.

      AFFIRMED.




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