           Case: 19-10726   Date Filed: 03/26/2020   Page: 1 of 11



                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-10726
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 8:18-cr-00350-SDM-JSS-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

SAVANNAH ROLLE,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (March 26, 2020)

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

PER CURIAM:
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      Savannah Rolle appeals his convictions and 120-month sentence for

possession of a firearm by a convicted felon on two grounds. First, as to his

conviction itself, he argues that the district court plainly erred by failing to inform

him that the government had to prove that he knew he was convicted of a crime

punishable by more than one year before accepting his guilty plea, as the Supreme

Court required in Rehaif v. United States, __ U.S. __, 139 S. Ct. 2191 (2019).

Second, as to his sentence, he argues that the district court erred in finding that he

did not qualify for a reduction in his offense level for acceptance of responsibility

when it found that his case was not “extraordinary” under application note 4 to

§ U.S.S.G. § 3E1.1. We affirm on both grounds and address each in turn.

                           I. ROLLE’S GUILTY PLEA

      Rolle argues that the district court plainly erred by accepting his guilty plea

when he had not been properly apprised of the elements of the offense with which

he was charged. We review the constitutionality of a guilty plea and a Rule 11

violation for plain error when the objection is raised for the first time on appeal.

United States v. Moriarty, 429 F.3d 1012, 1018–19 (11th Cir. 2005). Under plain

error review, the defendant has the burden to show that: (1) an error occurred;

(2) the error was plain; and (3) the error affects substantial rights. United States v.

Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003). If the first three prongs of plain

error are met, we may exercise our discretion to review the error, but only if the


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error seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id.

      The district court must satisfy the three core objectives of Federal Rule of

Criminal Procedure 11 when conducting a plea colloquy. See Fed. R. Crim. P.

11(b)(1)(G). Rule 11 requires that a district court determine that: (1) the guilty

plea is free from coercion; (2) the defendant understands the nature of the charges;

and (3) the defendant knows and understands the consequences of his guilty plea.

United States v. Zickert, 955 F.2d 665, 668 (11th Cir. 1992). Rule 11 does not

require a district court to list the elements of an offense. United States v.

Presendieu, 880 F.3d 1228, 1238 (11th Cir. 2018); see Fed. R. Crim. P.

11(b)(1)(G).

      In United States v. Quinones, we held that, when the district court failed to

ensure that the defendant understood the nature of the charge against him, the

failure was plain error and violated the defendant’s substantial rights. 97 F.3d 473,

475 (11th Cir. 1996), abrogated on other grounds by United States v. Vonn, 535

U.S. 55, 74–75 (2002)). Quinones was later abrogated in part by the Supreme

Court in Vonn, which held that it was improper to limit the analysis of whether a

Rule 11 error occurred or resulted in prejudice by reviewing only the plea colloquy

transcript and that, instead, the “reviewing court may consult the whole record




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when considering the effect of any error on substantial rights.” See Vonn, 535 U.S.

at 74–75.

       The Supreme Court later provided in United States v. Dominguez Benitez a

standard for determining whether a defendant has shown whether a plain error

under Rule 11 affected his substantial rights. 542 U.S. 74, 81 (2004). The

Supreme Court held that a defendant seeking a reversal of his conviction on the

ground that the district court committed plain error under Rule 11 in accepting his

guilty plea must show a “reasonable probability that, but for the error, he would

not have entered the plea.” Id. at 83. The Court also held that the defendant “must

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. (quotation omitted). We applied Dominguez

Benitez and held that when a district court plainly errs by failing to ensure that a

defendant understood the nature of the charges against him, to warrant relief under

plain error review, the defendant still must show a reasonable probability that he

would not have entered a guilty plea but for the error. Presendieu, 880 F.3d. at

1239, 1239 n.3 (holding that the defendant did not make this showing because he

had not cited any evidence indicating that he otherwise would not have pled

guilty).




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      It is unlawful for a person “who has been convicted in any court of[] a crime

punishable by imprisonment for a term exceeding one year” to “knowingly”

possess a firearm or ammunition. 18 U.S.C. § 922(g)(1). In Rehaif v. United

States, the Supreme Court held that “in a prosecution under 18 U.S.C. § 922(g) and

§ 924(a)(2), the government must prove both that the defendant knew he possessed

a firearm and that he knew he belonged to the relevant category of persons barred

from possessing a firearm” when he possessed it. 139 S. Ct. 2191, 2200 (2019).

      In United States v. Reed, we affirmed Reed’s conviction for possessing a

firearm as a felon under section 922(g)(1) after the Supreme Court’s decision in

Rehaif. 941 F.3d 1018, 1022 (11th Cir. 2019). We acknowledged that Reed

established errors in his indictment and at trial that Rehaif made plain. Rehaif

made clear that the government must prove that a defendant knew of his status as a

person barred from possessing a gun. The government conceded that error

occurred when Reed’s indictment failed to allege that he knew he was a felon and

when the jury was not instructed to find that Reed knew he was a felon, and

conceded that Rehaif made that error plain. Id. at 1021.

      Nevertheless, we concluded that Reed could not show a reasonable

probability that the outcome of his trial would have been different had the

knowledge requirement been included. Id. We opined that to properly evaluate

Reed’s claims of error, we had to view them against the entire record. Id.


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Specifically, we noted that the record showed that: (1) Reed had been convicted of

8 felonies in state court at the time of his arrest for firearm possession; (2) Reed

stipulated prior to trial that he had previously been convicted of a felony and had

never had his right to possess a firearm restored; (3) Reed acknowledged during his

trial testimony that he knew he was not supposed to have a gun; and (4) the PSI

stated that he had been incarcerated for 18 years prior to the firearm possession,

which Reed did not dispute. Id. at 1021–22. We held that, because the record

established that Reed knew he was a felon, he failed to show that the errors

affected his substantial rights or the fairness, integrity, or public reputation of his

trial. Id. at 1022.

       We note, as a threshold matter, that Rolle did not challenge the validity of

his guilty plea before the district court and therefore, as he concedes, his challenge

is subject to review for plain error. See Moriarty, 429 F.3d at 1018–19. We

conclude here, as we did in Reed, that Rolle “has established errors . . . at his trial

that Rehaif made plain.” 941 F.3d at 1021; see Rehaif, 139 S. Ct. at 2200. Rolle

next has to show a “reasonable probability that, but for the error, he would not

have entered the [guilty] plea.” See Dominguez Benitez, 542 U.S. at 83.

       Rolle has not met this burden. He does not even argue—much less show—

that he would not have pleaded guilty had he known that the government was

required to prove that he knew that he was a convicted felon. Moreover, in light of


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the entire record, it seems rather unlikely that Rolle would have changed his guilty

plea with this information.

       First, in his sentencing memorandum and at sentencing, Rolle admitted to

having previously served a sentence of 36 months—which shows that, at the time

he possessed the gun, he objectively and subjectively knew that he had been

convicted in any court of a crime punishable by imprisonment for a term exceeding

one year. See 18 U.S.C. § 922(g)(1). Second, Rolle pleaded guilty to the

indictment, which included five separate convictions that were described as

felonies in the § 922(g) count. Third, though Rolle structured his guilty plea such

that he only pleaded guilty to the essential elements of the crime, he affirmed to the

district court that he was not contesting that he was a convicted felon. Fourth,

Rolle did not object to the PSI’s description of the five felony convictions that the

government included in the indictment.1 Fifth, and finally, the fact that Rolle,

while fleeing from a Florida police officer, threw his gun onto the roof of a nearby

house lends itself to a reasonable inference that he knew that his status as a felon

meant that he was not allowed to possess a gun. Accordingly, the argument that

Rolle would have pleaded not guilty but for the plain error is as weak here as it was

in Reed, where the defendant had been convicted of multiple felony convictions in


1
  As we explained in United States v. Wade, “[i]t is the law of this circuit that a failure to object
to allegations of fact in a PSI,” like a list of felony convictions, “admits those facts for
sentencing purposes.” 458 F.3d 1273, 1277 (11th Cir. 2006).
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state court, stipulated that he was a felon, and testified that he knew he was not

supposed to have a gun. 941 F.3d at 1021–22.

      Accordingly, Rolle has thus failed to carry his burden under plain error

review of showing that any plain error affected his substantial rights. See

Dominguez Benitez, 542 U.S. at 83; Presendieu, 880 F.3d. at 1239, 1239 n.3.

          II. ACCEPTANCE OF RESPONSIBILITY REDUCTION

      Rolle’s second argument is that the district court erred by refusing to grant

him a reduction in his sentence for acceptance of responsibility under § 3E1.1. In

reviewing the district court’s application of the Sentencing Guidelines, we review

its legal interpretation of the Guidelines de novo, United States v. Coe, 79 F.3d

126, 127 (11th Cir. 1996), and the factual findings upon which its determinations

are made for clear error. See Moriarty, 429 F.3d at 1022–23. Because the

sentencing judge is in a unique position to evaluate a defendant’s acceptance of

responsibility, the determination of the sentencing judge is “entitled to great

deference on review.” U.S.S.G. § 3E1.1, cmt. n.5. To find the district court’s

decision clearly erroneous, we must have a “definite and firm conviction that a

mistake was committed.” United States v. Rothenberg, 610 F.3d 621, 624 (11th

Cir. 2010) (quotation omitted). The district court’s decision on the acceptance of

responsibility reduction will not be overturned unless the facts in the record clearly

establish that the defendant actually accepted personal responsibility. United


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States v. Sawyer, 180 F.3d 1319, 1323 (11th Cir. 1999). The defendant bears the

burden of proving he clearly accepted responsibility. Id.

        A defendant is entitled to a two-level reduction in his offense level if he

clearly demonstrates acceptance of responsibility. U.S.S.G § 3E1.1(a). With

respect to obstruction of justice enhancements, the commentary to § 3E1.1 states

that:

        Conduct resulting in an enhancement under § 3C1.1 (Obstructing or
        Impeding the Administration of Justice) ordinarily indicates that the
        defendant has not accepted responsibility for his criminal conduct.
        There may, however, be extraordinary cases in which adjustments
        under both §§ 3C1.1 and 3E1.1 may apply.

U.S.S.G. § 3E1.1, comment. (n.4). “A defendant who enters a guilty plea is not

entitled to an adjustment under this section as a matter of right.” Id. cmt. n.3.

Indeed, more than a guilty plea is required to warrant the reduction for acceptance

of responsibility. See United States v. Wright, 862 F.3d 1265, 1279 (11th Cir.

2006). The entry of a guilty plea combined with a truthful admission of the

conduct comprising the offense charged constitutes significant evidence of

acceptance of responsibility. U.S.S.G. § 3E1.1, cmt. n.3. But those acts may be

outweighed by conduct that is inconsistent with acceptance of responsibility.

United States v. Wade, 458 F.3d 1273, 1279 (11th Cir. 2006).

        While a district court has broad discretion to grant or deny a reduction for

acceptance of responsibility, the court errs if it believes it does not have the


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authority to grant the reduction. United States v. Mathews, 874 F.3d 698, 709

(11th Cir. 2017). We remanded a case for resentencing when we determined that

the district court erroneously believed that a defendant’s failed drug test meant

that, as a matter of law, it did not have the authority to grant the acceptance of

responsibility adjustment. Id.

      As an initial matter, the district court’s determination that Rolle was not

entitled to an acceptance of responsibility reduction should be reviewed for clear

error only. Rolle’s argument that he is entitled to de novo review fails because he

inaccurately asserts that he is challenging the district court’s interpretation and

application of the Guidelines. As a practical matter, Rolle is solely challenging the

district court’s factual finding—not its legal interpretation of the applicable

Guidelines. Accordingly, Rolle must show that the district court clearly erred in

finding that he had not accepted responsibility for his conduct and his

circumstances were not extraordinary.

      It was not clear error for the district court to find that Rolle’s conduct that

led to the obstruction of justice enhancement—his failure to appear at a show cause

hearing regarding his multiple pretrial violations—outweighed his admission of

guilt and was inconsistent with an acceptance of responsibility adjustment. See

Wade, 458 F.3d at 1279. Accordingly, the district court did not clearly err in




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finding that Rolle’s case was not extraordinary and denying Rolle a reduction for

acceptance of responsibility.

      AFFIRMED.




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