           Case: 17-11367    Date Filed: 09/14/2018   Page: 1 of 9


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-11367
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 5:16-cr-00257-AKK-JHE-1



UNITED STATES OF AMERICA,

                                              Plaintiff-Appellee,

                                   versus

SERGIO MOTUTO SILVA,

                                              Defendant-Appellant.

                      ________________________

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

                            (September 14, 2018)

Before WILLIAM PRYOR, JORDAN and HULL, Circuit Judges.

PER CURIAM:
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      Sergio Silva appeals his convictions that were entered on pleas of guilty to

conspiring to distribute and possess with the intent to distribute 5 kilograms or

more of cocaine and 50 grams or more of methamphetamine, 21 U.S.C. §§ 846,

841(a)(1), (b)(1)(A), attempting to possess with the intent to distribute 50 grams or

more of cocaine, id. §§ 846, 841(a)(1), (b)(1)(B), (b)(1)(C), and possessing with

intent to distribute 50 grams or more of methamphetamine, id. § 841(a)(1),

(b)(1)(A); 18 U.S.C. § 2. Silva argues, for the first time on appeal, that his guilty

pleas were not entered knowingly and voluntarily because he was unaware that he

would receive a sentence enhancement for possessing a firearm, United States

Sentencing Guidelines Manual § 2D1.1(b)(1) (Nov. 2016). After careful review,

we affirm.

      Silva entered a written agreement to plead guilty to three drug offenses in

exchange for the dismissal of one additional drug charge. The written agreement

stated that the district court would find facts to calculate Silva’s advisory

sentencing range under the Sentencing Guidelines, the sentencing recommendation

of the government was not binding on the district court, and the decision about

what sentence to impose rested in the discretion of the district court. The

agreement also provided that the plea agreement would not prohibit the district

court from considering additional factors to fashion an appropriate sentence.




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      During the change of plea hearing, Silva confirmed that he understood he

faced a sentencing range of 10 years to life imprisonment for his conspiracy and

for his possession of methamphetamine offenses, see 21 U.S.C. §§ 846, 841(a)(1),

(b)(1)(A); 18 U.S.C. § 2, and a sentencing range of 5 to 40 years of imprisonment

for attempting to possess cocaine, see 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B),

(b)(1)(C). When the district court asked whether there were “any enhancements in

this case,” the prosecutor responded, “No enhancements.”

      Silva acknowledged that he had conferred with his attorney about the

Sentencing Guidelines, that his sentencing range would not be determined until

sentencing, and that the sentence imposed might differ from the estimate provided

by his attorney:

      THE COURT: Any sentence that I give you will be subject to the
      requirements of the United States Sentencing Guidelines but the Court
      may go above or below those guidelines under some limited
      circumstances. Have you and your lawyer talked about the sentencing
      guidelines and how they may apply in your case? Have you talked
      about sentencing guidelines?

      THE DEFENDANT: Yes.

      THE COURT: And you understand that I will not be able to determine
      your sentence under the guidelines under several months down the
      road after I have had some additional information; do you understand
      that, sir?

      THE DEFENDANT: Yes, sir.




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      THE COURT: And do you also understand that what I ultimately give
      you may be different from any estimate that your lawyer may have
      given you?

      THE DEFENDANT: Yes, sir.

      Silva also confirmed that the recommendations made by the government in

its agreement were not binding on the district court. And Silva acknowledged that

he understood that he would not be allowed to withdraw his pleas of guilty if he

received a more severe sentence than what the government recommended.

      THE COURT: Do you understand that the Court is not required to go
      along with any recommendations that the government has agreed to
      make on your behalf?

      THE DEFENDANT: Yes.

      THE COURT: And do you understand that if I sentence you to
      something that’s worse than what the government recommends, you
      cannot use that as a reason to take back your guilty plea?

      THE DEFENDANT: Yes.

After Silva acknowledged a second time that the district court was unaware of

Silva’s actual sentence but that he would face minimum sentences of 10 years each

for his conspiracy and methamphetamine offenses and a minimum sentence of 5

years for his cocaine offense, the district court accepted Silva’s pleas of guilty.

      Silva’s presentence investigation report provided a sentencing range of 235

to 293 months of imprisonment based on a total offense level of 38 and a criminal

history of I. The presentence report grouped Silva’s offenses and provided a base


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offense level of 36, which it increased by two levels for his possession of a firearm.

U.S.S.C. § 2D1.1(b)(1). The report also increased Silva’s offense level by three

levels for his role as a manager or supervisor of the conspiracy, see id. § 3B1.1(b),

and subtracted three levels for his acceptance of responsibility, see id. § 3E1.1.

      Silva objected to the presentence report and opposed the sentence

enhancements and the denial of safety valve relief. The government moved the

district court to depart downward to an offense level of 35, U.S.S.G. § 5K1.1,

which resulted in Silva receiving an adjusted sentencing range of 168 to 210

months of imprisonment. The government requested that the district court sentence

Silva to 176 months of imprisonment.

      At sentencing, Silva withdrew his objections to the presentence report. The

district court adopted the findings in the presentence report and accepted its

calculation of Silva’s advisory sentencing range. The district court also granted the

motion of the government to depart downward by 3 levels and calculated Silva’s

sentencing range using an adjusted base offense of 35. The district court sentenced

Silva to three concurrent sentences of 170 months of imprisonment, credited him

for 20 months and 19 days he had served in a state court, and dismissed the

remaining charge against him.

      Silva argues, for the first time, that his plea was not knowingly and

voluntarily entered because he was unaware that his sentence would be enhanced


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for his possession of a firearm. Because Silva did not challenge the validity of his

pleas of guilty in the district court, we review for plain error. United States v. Sosa,

782 F.3d 630, 636 (11th Cir. 2015). To satisfy that standard, Silva must prove that

an error occurred that is plain and that affected his substantial rights. See id.

Because Silva pleaded guilty, he “must show a reasonable probability that, but for

the error, he would not have entered [his] plea[s].” United States v. Dominguez

Benitez, 542 U.S. 74, 83 (2004).

      A plea of guilty is valid so long as it is entered voluntarily, knowingly, and

intelligently. See Sosa, 782 F.3d at 636. For a guilty plea to be knowing and

voluntary, the district court must address three “core concerns,” which are that the

defendant is not being coerced to plead guilty, that he understands the nature of the

charges against him, and that he knows and understands the consequences of

changing his plea from not guilty to guilty. United States v. Symington, 781 F.3d

1308, 1314 (11th Cir. 2015). The failure of the district court to notify the defendant

of a potential guideline enhancement does not affect the validity of his guilty plea

so long as he is aware that consideration of the Sentencing Guidelines could affect

his sentence. See United States v. Bozza, 132 F.3d 659, 661–62 (11th Cir. 1998).

As explained in the advisory committee notes to Federal Rule of Criminal

Procedure 11, “the district court [must] inform a defendant that the court is

required to consider any applicable guidelines” to “assure[] that the existence of


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guidelines will be known to a defendant before a plea of guilty . . . is accepted,” yet

because it is “impracticable, if not impossible, to know which guidelines will be

relevant prior to the formulation of a presentence report and resolution of disputed

facts, [Rule 11(c)(1)] does not require the court to specify which guidelines will be

important or . . . might prove to be significant.” Fed. R. Crim. P. 11(c)(1) advisory

committee’s note to 1989 amendment.

      We find no error, plain or otherwise, in the decision of the district court to

accept Silva’s pleas of guilty. Silva does not argue that he was coerced, induced, or

tricked into pleading guilty, nor does he dispute that he understood the crimes to

which he was pleading guilty. Symington, 781 F.3d at 1314. Silva knew that he

could receive maximum statutory sentences of 40 years and of life imprisonment

for his crimes. And the record establishes that Silva knew that the guidelines could

affect his sentence. See Bozza, 132 F.3d at 661–62. Silva acknowledged that the

guidelines governed the calculation of his sentencing range, that the district court

could not determine his sentencing range without additional information, and that

the application of the guidelines could result in a sentencing range different from

the range estimated by his attorney. Silva also was aware that he could not

withdraw his plea if he received a greater sentence than he anticipated. The failure

of the district court to notify Silva that his guideline range might be enhanced for

possessing a firearm did not affect the validity of his guilty plea. See id.; Fed. R.


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Crim. P. 11 advisory committee’s note (1989). Silva entered his pleas of guilty

knowingly and voluntarily.

      When the district court asked the prosecutor at the plea hearing whether

there were any enhancements, the context made clear that the district court was

asking about statutory, not guideline, enhancements. It would have been premature

to discuss guideline calculations before the preparation of the presentence report.

And the district court later made sure that Silva understood that the guidelines

could affect his sentence.

      Even if we were to assume that a plain error occurred, Silva cannot establish

that the error affected his substantial rights. Silva does not argue that, had he

known that he was subject to the firearm enhancement, he would not have pleaded

guilty and proceeded to trial. See Dominguez Benitez, 542 U.S. at 83. In any event,

the application of the firearm enhancement did not result in a penalty greater than

what Silva expected. The two-level enhancement produced an advisory guideline

range that was well below Silva’s maximum statutory penalties. And ultimately,

the enhancement did not affect Silva’s sentence. At sentencing, the district court

departed downward three levels, which eliminated the two-level enhancement he

received for possessing a firearm. The district court calculated an adjusted

sentencing range—and imposed a sentence—significantly below than the low end

of Silva’s advisory guideline range.


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We AFFIRM Silva’s convictions.




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