               Case: 11-11173       Date Filed: 11/20/2012      Page: 1 of 22

                                                                     [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 11-11173
                              ________________________

                        D.C. Docket No. 2:10-cr-14089-KMM-1



UNITED STATES OF AMERICA,

                                                                          Plaintiff-Appellee,

                                            versus

HIPOLITO ALEJANDRO FELIX,

                                                                      Defendant-Appellant.


                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________
                                   (November 20, 2012)

Before HULL and FAY, Circuit Judges, and WHITTEMORE,* District Judge.

PER CURIAM:


       *
         Honorable James D. Whittemore, United States District Judge, Middle District of
Florida, sitting by designation.
              Case: 11-11173    Date Filed: 11/20/2012    Page: 2 of 22

      After pleading guilty, Hipolito Alejandro Felix appeals his conviction for

one count of attempting to produce child pornography, in violation of 18 U.S.C.

§ 2251(a). On appeal, Felix challenges the voluntariness of his guilty plea,

claiming for the first time that the magistrate judge did not adequately advise him

of the nature of the charges against him, and thus, that his guilty plea should be set

aside. After plain error review, and with the benefit of oral argument, we affirm

Felix’s conviction.

                                I. BACKGROUND

A.    Indictment

      In November 2010, a federal grand jury indicted Felix on three counts:

attempting to persuade, induce, entice, and coerce a minor to engage in sexually

explicit conduct for the purpose of producing a visual depiction of such conduct,

which visual depiction was intended to be transported in interstate commerce and

was produced using materials that had been transported in interstate commerce, in

violation of 18 U.S.C. § 2251(a) (Count 1); using an internet service to knowingly

persuade, induce, entice, and coerce a minor to engage in sexual activity in

violation of 18 U.S.C. § 2422(b) (Count 2); and knowingly transferring obscene

material to a minor in violation of 18 U.S.C. § 1470 (Count 3).

      Because this appeal involves only the § 2251(a) attempt offense in Count 1,

                                          2
              Case: 11-11173    Date Filed: 11/20/2012   Page: 3 of 22

we quote Count 1 in full:

           On or about January 14, 2010, in St. Lucie County, in the
      Southern District of Florida, the defendant,

             HIPOLITO ALEJANDRO FELIX

      did employ, use, persuade, induce, entice, and coerce a minor to engage
      in sexually explicit conduct for the purpose of producing a visual
      depiction of such conduct, which visual depiction was intended to be
      transported in interstate commerce and was produced using materials
      that had been mailed, shipped, and transported in interstate commerce,
      or attempted to do so, in violation of Title 18, United States Code,
      Section 2251(a).

In short, Count 1 charged Felix with attempting to induce or entice a minor to

engage in sexually explicit conduct in order to produce a picture of that conduct,

which picture was intended to be transported in interstate commerce and was

produced using materials that were transported in interstate commerce.

B.    Plea Agreement and Factual Stipulation

      On January 3, 2011, Felix entered a guilty plea pursuant to a negotiated plea

agreement with the government. Under the agreement’s terms, Felix agreed to

plead guilty to Count 1 of the indictment, which the agreement listed on its first

page as “Attempt to Produce Child Pornography, in violation of Title 18, United

States Code, Section 2251(a).” In exchange, the government agreed to dismiss

Counts 2 and 3 of the indictment and to request a three-level reduction to Felix’s

advisory sentencing guidelines range for his acceptance of responsibility. In the

                                          3
              Case: 11-11173     Date Filed: 11/20/2012    Page: 4 of 22

agreement, Felix acknowledged that Count 1 carried a 15-year mandatory

minimum and a 30-year maximum term of imprisonment.

      Felix and the government concurrently executed and filed a factual

stipulation in support of his guilty plea to the § 2251(a) attempt offense in Count

1. Felix personally signed the factual stipulation and so did his attorney and his

interpreter. On its first page, the stipulation stated that, on or about January 14,

2010, Felix had

      attempt[ed] to use, persuade, induce, entice, and coerce a minor to
      engage in sexually explicit conduct for the purpose of producing a visual
      depiction of such conduct, which visual depiction was intended to be
      transported in interstate commerce and was produced using materials
      that had been mailed, shipped, and transported in interstate commerce,
      in violation of Title 18, United States Code, Section 2251(a).

(emphasis added). Thus, the factual stipulation, signed by Felix, set forth all the

elements of the Count 1 offense.

      The factual stipulation also contained the following factual details showing

the elements of the § 2251(a) attempt offense were satisfied. On January 19, 2010,

Detective Sheila LaGrega of the Port St. Lucie Police Department began an

investigation of inappropriate text messages sent to a 15-year-old female, who was

identified as “AB” with a date of birth of December 23, 1994. Defendant Felix

was AB’s foster father at the time.

      AB advised Detective LaGrega that she had received sexually explicit text

                                           4
             Case: 11-11173     Date Filed: 11/20/2012   Page: 5 of 22

messages on her cell phone from a Yahoo! user named “tania_hot69.” AB also

advised Detective LaGrega that she had been replying to the text messages, and

that AB originally thought they were sent by her former friend named Tania. In

December 2009, AB came to realize that the text messages were not from Tania,

and she asked the “tania_hot69” user who he was. AB received a response from

“tania_hot69” indicating that the user was Felix.

      Detective LaGrega reviewed the contents of AB’s cell phone. On the cell

phone was a message sent on January 14, 2010 from “tania_hot69.” The message

contained a picture of Felix holding his penis. A message sent from “tania_hot69”

to AB four minutes later said “let me see u pussy,” and a third message, sent

shortly after the second, said “Id like to see u pussy.” Detective LaGrega believed

that these messages were requests from Felix to AB to take a photo of her vagina

and send the photo to Felix. A later forensic examination of AB’s cell phone

revealed, in addition to the messages and photo previously discussed, photos of

AB taking a picture of herself in a mirror while exposing her vagina.

      Detective LaGrega interviewed Felix, who admitted that he created the

“tania_hot69” Yahoo! username and sent text messages to AB using that

username. He also admitted sending a picture of his penis to AB. As to interstate

commerce, Felix acknowledged that the text messages he sent to AB were relayed


                                         5
              Case: 11-11173    Date Filed: 11/20/2012   Page: 6 of 22

through servers located in California, and that his and AB’s cell phones were

manufactured in foreign countries.

C.    Plea Colloquy

      At a change-of-plea hearing held on January 3, 2011, Felix, through an

interpreter, consented to proceed before a magistrate judge. Felix informed the

magistrate judge that he was 38 years old, had “finished everything” in school, and

that he was not under the influence of drugs or alcohol and had received no recent

treatment for mental illness or addiction.

      Felix affirmed that he had received a copy of the indictment and had “fully

discussed” his charges and case in general with counsel. Felix admitted that he

was pleading guilty pursuant to a plea agreement, which he had signed after

reviewing it with counsel through the use of an interpreter. The colloquy between

Felix and the magistrate judge was as follows:

      THE COURT: Have you received a copy of the indictment pending
      against you and have you fully discussed those charges and the case in
      general with your attorney?

      FELIX: Yes, sir.

      THE COURT: Are you fully satisfied with the counsel, representation,
      and advice given you in this case by your attorney?

      FELIX: Yes, sir.

      THE COURT: Is your willingness to plead guilty the result of
                                             6
              Case: 11-11173     Date Filed: 11/20/2012   Page: 7 of 22

      discussions that your attorney has had with the attorney for the
      government which has resulted in this written plea agreement I have in
      my hand which I’m showing you?

      FELIX: Yes, sir.

      THE COURT: Did you have an opportunity to completely review this
      plea agreement with your attorney through the use of an interpreter, and
      discuss it with your attorney completely and have her answer all of your
      questions before you signed it?

      FELIX: Yes, sir.

      Felix also admitted that he entered into the plea agreement because he

believed it was in his best interest to do so:

      THE COURT: [Your attorney] has just told me that you believe that this
      plea agreement and entering into this plea agreement and pleading guilty
      pursuant to the terms of the plea agreement are in your best interest, is
      that correct, sir?

      FELIX: Yes, sir.

      Felix confirmed that he was pleading guilty of his own free will, and

because he was guilty, as shown:

      THE COURT: You have listened to all the advice that your attorney has
      given you and you have decided that you wish to enter into this plea
      agreement fully and voluntarily and plead guilty, is that correct, sir?

      FELIX: Yes, sir.

      THE COURT: And while [your attorney] didn’t say it, I think she is
      implying that she can give you the advice but you are the person that end
      up suffering the penalty. If you go to jail or any other penalties which
      are imposed at sentencing, you are the person that is sentenced. So it is

                                           7
             Case: 11-11173    Date Filed: 11/20/2012    Page: 8 of 22

      your decision whether or not to plead guilty. Do you understand that,
      sir?

      FELIX: Yes, sir.

      ....

      THE COURT: Are you pleading guilty of your own free will because
      you are guilty?

      FELIX: Yes, sir.

      Proceeding to the terms of Felix’s plea agreement, the magistrate judge and

Felix engaged in this discussion:

      THE COURT: Paragraph one of your plea agreement talks about the
      charge to which you are pleading guilty. It says the defendant agrees to
      plead guilty to Count One of the indictment which count charges the
      defendant with attempt to produce child pornography in violation of
      Title 18, United States Code, section 2251(a). Is that the charge to
      which you understand you are pleading guilty, sir?

      FELIX: A moment, please.

      THE COURT: Okay. For the record Mr. Felix just wanted time to
      discuss something with his attorney through the use of the interpreter.
      I will ask you again. The charge that I read to you which is contained
      within paragraph one of your plea agreement, Mr. Felix, is that the
      charge to which you are pleading guilty?

      FELIX: Yes, Sir.

      THE COURT: Any hesitation? Why are you hesitating when I ask you
      that question? It is either a yes or no?

      FELIX: I just (inaudible) that I have never been in trouble before. I
      have never been in a case. That’s why I’m hesitating longer.

                                         8
              Case: 11-11173     Date Filed: 11/20/2012   Page: 9 of 22

      THE COURT: That’s fine and I have no problem. I just want to make
      sure that you understand that that is the charge to which you are
      pleading guilty. Any issues concerning your background or the—any
      other mitigation— factors in mitigation or statements you wish to make,
      you will have the right to make at sentencing. I just need to make sure
      that you understand the charge to which you are pleading guilty and that
      you wish to do so, Sir. Otherwise you have a right to proceed to trial.
      You have that constitutional right. No one wishes to make you plead
      guilty, and I am going to discuss that later during this proceeding this
      morning. I just want a clear record that this is what you wish to do.
      And you wish to continue to plead guilty, is that correct, sir?

      FELIX: Yes, Sir.

      THE COURT: And the charge to which you understand you are pleading
      guilty is the charge as set forth in Count One of the plea agreement
      which I read to you, is that correct, sir?

      FELIX: Yes, sir.

      The magistrate judge next informed Felix that Count 1 carried a mandatory

minimum sentence of 15 years’ imprisonment and a maximum of 30 years’

imprisonment, followed by a term of supervised release ranging from 5 years to

life. Felix indicated that he understood that as a result of his conviction, he could

be required to register as a sex offender and could be subject to additional

punishment for noncompliance. Felix further indicated that he understood the trial

rights that he gave up by pleading guilty, the process by which the district court

would calculate his advisory sentencing guideline range, and the collateral

consequences of being a convicted felon.


                                          9
             Case: 11-11173     Date Filed: 11/20/2012    Page: 10 of 22

      Turning to the factual stipulation, the magistrate judge commented that it

appeared to set forth the elements of Count 1 sufficient to sustain Felix’s plea.

The magistrate judge observed that Felix, counsel for both parties, and an

interpreter signed the stipulation. Felix then admitted that he reviewed the

stipulation with counsel, and that it set forth the facts of his case as he understood

them. The colloquy went this way:

      THE COURT: Mr. Felix, this stipulated factual basis, did you have an
      opportunity to completely review it with your attorney through the use
      of an interpreter and discuss it with her before you signed it?

      FELIX: Yes, sir.

      ....

      THE COURT: And, Mr. Felix, on the third line I’m pointing to with my
      thumb on this stipulated factual basis is that your signature, sir?

      FELIX: Yes, sir.

      THE COURT: And this was read to you by an interpreter who signed
      below your name, is that correct, sir?

      FELIX: Yes, sir.

      THE COURT: Do you agree to this fact, that these facts set forth in this
      factual basis, sir, accurately set forth the facts in your case as you
      understand them to be?

      FELIX: Yes, sir.

      The magistrate judge then inquired if there was any reason to read the


                                          10
               Case: 11-11173       Date Filed: 11/20/2012      Page: 11 of 22

stipulation into the record, but counsel for both parties indicated that there was

not. Specifically, the colloquy between the magistrate judge, Felix’s counsel

(Panayotta Augustin-Birch), and counsel for the government (Carmen Lineberger)

was as follows:

       THE COURT: Miss Birch and Miss Lineberger, any reason I need to
       read this [the stipulation] into the record if it is going to be filed?

       MS. LINEBERGER: No, your honor.

       MS. AUGUSTIN-BIRCH: No.

       THE COURT: Thank you both. It will be filed.1

       When asked how he pled to Count 1, Felix answered, “Guilty.” The

magistrate judge found that Felix was competent to enter an informed plea, and

was aware of the nature of his charge and the consequences of pleading guilty.

The magistrate judge further found that the plea to Count 1 was supported by an

independent factual basis that established each element of Count 1. Accordingly,

the magistrate judge declared that he would recommend that the district court

accept Felix’s guilty plea.

       In a report and recommendation (“R&R”) detailing Felix’s plea hearing, the

magistrate judge reiterated that a factual basis existed that established all elements

       1
        Felix was represented throughout the case—before the magistrate judge, the district
judge, and this Court on appeal—by the same counsel from the office of the Federal Public
Defender.

                                               11
             Case: 11-11173     Date Filed: 11/20/2012   Page: 12 of 22

of Count 1. The magistrate judge recommended that the district court accept

Felix’s plea because Felix had “freely and voluntarily entered” it, and notified

Felix that he had 14 days to file objections to this recommendation. Neither party

objected to the R&R, and the district court issued a paperless order adopting the

R&R and accepting Felix’s plea of guilty to Count 1.

      At a sentencing hearing held on February 28, 2011, the district court

sentenced Felix to a statutory mandatory minimum term of 15 years’

imprisonment, followed by a lifetime term of supervised release.

D.    Post-Judgment Motion to Withdraw Plea

      On March 8, 2011, Felix filed a pro se “Notice to Change of Plea.” Without

further explanation, Felix requested that the district court change his plea because

he was ready to proceed to trial. Shortly thereafter, through counsel, Felix filed a

notice of appeal of his judgment and sentence.

      Following the government’s response, the district court construed Felix’s

“Notice to Change of Plea” as a motion to withdraw his guilty plea and denied it.

The district court concluded that it had no authority to grant Felix relief because

he had already been sentenced. Alternatively, the district court found that Felix’s

motion was without merit.

      Later in March 2011, Felix sent the district court a pro se motion for


                                         12
             Case: 11-11173     Date Filed: 11/20/2012   Page: 13 of 22

substitute counsel in which he contended that his counsel “tricked” him into

accepting the guilty plea. Felix maintained that he was innocent and “always

wanted to go to trial.” Felix repeated his request for substitute counsel in two

additional pleadings, filed with the district court in April and June 2011. In the

June request, Felix alleged that his attorney induced him to plead guilty despite his

innocence, that no child pornography was found on his computer, and that the

phone number from which the text messages were sent did not belong to him.

E.    Felix’s Filings on Appeal

      On appeal to this Court, Felix’s counsel originally filed a brief and motion

to withdraw from representation, pursuant to the procedure outlined in Anders v.

California, 386 U.S. 738, 87 S. Ct. 1396 (1967). After we denied Felix’s counsel’s

first motion to withdraw, Felix’s counsel filed a renewed motion, again asserting

that there were no issues of arguable merit for purposes of appeal. Felix opposed

counsel’s renewed motion, arguing that he had pled guilty to the wrong charge

based on the incorrect advice of counsel, who told him that the record would be

corrected to reflect that he was actually pleading guilty to Count 3 of the

indictment. Felix further argued that “[h]ad [he] known he would plead guilty to

§ 2251(a), [he] would not have entered plea during his Rule 11 hearing.”

      We denied Felix’s counsel’s renewed motion to withdraw, directing counsel


                                         13
             Case: 11-11173     Date Filed: 11/20/2012    Page: 14 of 22

to file a brief addressing whether the magistrate judge, during Felix’s plea

colloquy, had complied with the second core concern of Rule 11 by ensuring that

Felix understood the nature of the charge to which he pled guilty. Thereafter,

Felix’s counsel filed a brief challenging the validity of Felix’s guilty plea. The

government filed a brief in opposition, arguing first that Felix had waived any

challenge to his guilty plea by failing to object to the magistrate judge’s R&R that

found that Felix’s plea was knowingly and voluntarily entered, and second, that

Felix’s guilty plea was valid. Felix’s counsel did not file a reply brief.

                          II. STANDARD OF REVIEW

      At the outset, we must address what standard of review governs our

consideration of Felix’s appeal. It is undisputed that neither Felix nor his counsel

objected to the magistrate judge’s Rule 11 colloquy or to the magistrate judge’s

R&R (finding Felix’s plea to Count 1 was knowing and voluntary). Ordinarily,

when a defendant fails to object to a violation of Rule 11 in the district court, we

review such claims, raised for the first time on appeal, for plain error. United

States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003).

      However, the government asserts that Felix waived any right to appeal at

all, relying on Rule 59 of the Federal Rules of Criminal Procedure. Rule 59

authorizes a district judge to refer to a magistrate judge “any matter that may


                                          14
             Case: 11-11173      Date Filed: 11/20/2012    Page: 15 of 22

dispose of a charge or defense,” and provides that failure to object “waives a

party’s right to review” as follows:

      [w]ithin 14 days after being served with a copy of the recommended
      disposition, or at some other time the court sets, a party may serve and
      file specific written objections to the proposed findings and
      recommendations. Unless the district judge directs otherwise, the
      objecting party must promptly arrange for transcribing the record, or
      whatever portions of it the parties agree to or the magistrate judge
      considers sufficient. Failure to object in accordance with this rule
      waives a party’s right to review.

Fed. R. Crim. P. 59(b)(1), (2) (emphasis added).

      The Advisory Committee has explained that Rule 59’s “waiver provision is

intended to establish the requirements for objecting in a district court in order to

preserve appellate review of magistrate judges’ decisions.” Fed. R. Crim. P. 59

Advisory Committee’s note (2005) (emphasis added). The Advisory Committee

has also stated that, “[d]espite the waiver provisions, the district judge retains the

authority to review any magistrate judge’s decision or recommendation whether or

not objections are timely filed.” Id. (citing Thomas v. Arn, 474 U.S. 140, 154, 106

S. Ct. 466, 474 (1985); Matthews v. Weber, 423 U.S. 261, 270-71, 96 S. Ct. 549,

554-55 (1976)). The government asserts Rule 59 waives not only Felix’s right to

object before the district court but also his right to review in this Court.

      Here, the magistrate judge’s R&R informed Felix that he had 14 days to file

objections to the magistrate judge’s recommendation to the district court that

                                           15
               Case: 11-11173   Date Filed: 11/20/2012    Page: 16 of 22

Felix’s guilty plea be accepted. The R&R did not, however, advise Felix if and

how his failure to object could affect his rights before this Court. The R&R did

not advise Felix that his failure to object would result in his waiver of his right to

appellate review of his guilty plea, under even a plain error standard. In addition,

this Court has not addressed, in a published opinion, the application of Rule

59(b)(2)’s waiver provision in the context of a challenge to the knowing and

voluntary nature of a defendant’s guilty plea. We need not address this Rule 59

issue because, even if Felix did not waive his right to challenge his guilty plea on

appeal to this Court, we would review Felix’s challenge only for plain error and

Felix has not shown plain error. See Monroe, 353 F.3d at 1349. In Part III, we

explain why.

                                 III. DISCUSSION

      To establish plain error, the defendant must show (1) error, (2) that is plain,

and (3) that affects substantial rights. United States v. Moriarty, 429 F.3d 1012,

1018-19 (11th Cir. 2005) (per curiam). If all three conditions are met, we may

exercise our discretion to recognize the error if the error “seriously affects the

fairness, integrity or public reputation of judicial proceedings.” Id. (quotation

marks and alteration omitted). For error to be plain, it must be “plain under

controlling precedent or in view of the unequivocally clear words of a statute or


                                          16
              Case: 11-11173     Date Filed: 11/20/2012    Page: 17 of 22

rule.” United States v. Lett, 483 F.3d 782, 790 (11th Cir. 2007); see also United

States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003) (per curiam).

      Under Rule 11, a court, when conducting a plea colloquy, must “conduct an

inquiry into whether the defendant makes a knowing and voluntary guilty plea.”

United States v. Hernandez-Fraire, 208 F.3d 945, 949 (11th Cir. 2000). In

accepting a defendant’s guilty plea, the court must specifically address the three

core concerns of Rule 11 by “ensuring that a defendant (1) enters his guilty plea

free from coercion, (2) understands the nature of the charges, and (3) understands

the consequences of his plea.” Moriarty, 429 F.3d at 1019. As part of the plea

colloquy, Rule 11 requires that the court “inform the defendant of, and determine

that the defendant understands . . . the nature of each charge to which the

defendant is pleading.” Fed. R. Crim. P. 11(b)(1)(G). The court must also

determine whether a factual basis supports the plea. Fed. R. Crim. P. 11(b)(3); see

also United States v. Terzado-Madruga, 897 F.2d 1099, 1125 (11th Cir. 1990)

(noting the court’s “independent[]” obligation to satisfy itself that there is a factual

basis for the plea).

      A district court complies with the second core concern when the record

supports its finding that the defendant understood both (1) what he was admitting,

and (2) that “what he was admitting constituted the crime charged.” United States


                                           17
             Case: 11-11173     Date Filed: 11/20/2012    Page: 18 of 22

v. Mosley, 173 F.3d 1318, 1324 (11th Cir. 1999) (quotation omitted). “[T]here is

no one mechanical way” by which a district court must advise a defendant of the

charge to which he is pleading guilty, and Rule 11 does not require that the district

court list every element of the offense seriatim. United States v. Wiggins, 131

F.3d 1440, 1442-43 (11th Cir. 1997) (per curiam) (holding the district court did

not plainly err in failing to separately outline the elements of a bank robbery

charge when it asked the defendant if he understood the nature of the charges, the

defendant unequivocally pled guilty and admitted that he robbed banks, and the

district court “incorporated the substance of those elements in a statement later on

in the plea colloquy”). Similarly, the district court need not explicitly ask whether

a defendant understands the nature of the charges against him. See United States

v. Camacho, 233 F.3d 1308, 1315-17 (11th Cir. 2000) (holding the district court

did not plainly err in failing to ask if the defendant understood the nature of a

cocaine distribution charge when it explained the facts that the government needed

to prove, the defendant acknowledged that she reviewed both the indictment and

the plea agreement with counsel, expressed no confusion about the charge, and the

facts were sufficient to establish her guilt). Rather, we will review whether the

district court adequately addressed the second core concern on a case-by-case

basis. United States v. James, 210 F.3d 1342, 1344 (11th Cir. 2000) (per curiam).


                                          18
             Case: 11-11173     Date Filed: 11/20/2012   Page: 19 of 22

      In the present case, after our review of the entire record, we conclude that

Felix has not carried his burden of demonstrating plain error in the magistrate

judge’s Rule 11 plea colloquy. First, at the change-of-plea hearing, the magistrate

judge established that Felix had received a copy of the indictment and had fully

discussed the charges against him and his case in general with his attorney. The

indictment, under Count 1, quoted extensively from the statutory language of 18

U.S.C. § 2251(a) and indicated that Felix had either violated the statute “or

attempted to do so.”

      Second, the first paragraph of Felix’s plea agreement, signed by Felix,

explicitly stated that Felix was agreeing to plead guilty to Count 1 of the

indictment, which the agreement identified as “Attempt to Produce Child

Pornography, in violation of Title 18, United States Code, Section 2251(a).” At

Felix’s change-of-plea hearing, the magistrate judge confirmed that Felix had

reviewed the agreement with his attorney and an interpreter, and that Felix had

voluntarily signed the agreement because it was in his best interests to plead

guilty. The magistrate judge then directed Felix’s attention to the first paragraph

of the plea agreement and asked Felix whether he understood that he had agreed

“to plead guilty to Count One of the indictment[,] which count charges the

defendant with attempt to produce child pornography in violation of Title 18,


                                         19
              Case: 11-11173     Date Filed: 11/20/2012    Page: 20 of 22

United States Code, Section 2251(a).” Although Felix then requested a moment to

discuss something with his attorney, following these discussions, Felix twice

confirmed that he understood that he was pleading guilty to Count 1 of the

indictment.

      Third, and importantly here, Felix and the government executed and filed a

factual stipulation concurrently with the filing of the plea agreement. This factual

stipulation, on the top of its first page, identified the statute, 18 U.S.C. § 2251(a),

that Felix was charged with violating, and then went on to set out the elements of

an attempt to violate that statute. The stipulation then detailed the factual basis of

Felix’s attempt to produce child pornography and specifically included two facts

that satisfied the interstate commerce element of the offense: (1) the text messages

sent by Felix to AB were relayed through servers located in California; and

(2) Felix’s and AB’s cell phones were manufactured outside of the United States.

See 18 U.S.C. § 2251(a) (the image of child pornography may be either

“transported or transmitted using any means or facility of interstate or foreign

commerce” or “produced or transmitted using materials that have been mailed,

shipped, or transported in or affecting interstate or foreign commerce”). Felix, his

interpreter, and his attorney signed this stipulation, which set forth both the

language of the § 2251(a) attempt offense and a sufficient factual basis for Felix’s


                                           20
             Case: 11-11173      Date Filed: 11/20/2012   Page: 21 of 22

guilty plea to that particular offense.

      Notably too, at Felix’s change-of-plea hearing, the magistrate judge

confirmed that Felix had read the stipulation with the assistance of an interpreter,

and that Felix understood that the stipulation set forth the details of his offense.

The magistrate judge then asked whether the government or Felix’s counsel

desired to have the stipulation read into the record, and both attorneys expressly

declined to have the magistrate judge read the stipulation in open court. We

emphasize that, in addition to setting out the elements of a § 2251(a) attempt

offense, the stipulation followed its recitation of the elements with the actual facts

of Felix’s offense, demonstrating how the elements were satisfied in Felix’s

particular case.

      On appeal, Felix cannot now identify as error the magistrate judge’s failure

to expressly delineate the elements of his offense when (1) those elements were

listed in three separate documents that Felix admitted reading (in the case of the

indictment, plea agreement, and factual stipulation), and signing (in the case of the

plea agreement and factual stipulation), all with the aid of an interpreter; and

(2) his attorney expressly declined to have the magistrate judge read those

elements into the record in open court. We therefore conclude that, on this

particular record as a whole, there is ample support for the magistrate judge’s


                                          21
               Case: 11-11173       Date Filed: 11/20/2012       Page: 22 of 22

finding that Felix both understood the facts to which he was admitting, and that

those facts “constituted the crime charged.” Mosley, 173 F.3d at 1324.

       In light of the facts and circumstances of this case, we cannot say that the

magistrate judge plainly erred in conducting Felix’s plea colloquy.2 We thus

affirm Felix’s conviction.

       AFFIRMED.




       2
        Because Felix has not shown error that is plain, we need not address the third and fourth
prongs of plain error review.

                                               22
