           Case: 14-13969   Date Filed: 08/26/2015   Page: 1 of 10


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-13969
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:14-cr-20204-UU-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

MARK ANTHONY DACRES, JR.,

                                                          Defendant-Appellant.

                       ________________________

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

                             (August 26, 2015)

Before WILSON, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:
              Case: 14-13969     Date Filed: 08/26/2015    Page: 2 of 10


      Mark Anthony Dacres, Jr. appeals his conviction and 81-month sentence

after pleading guilty to one count of knowingly possessing 15 or more

unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3), and one count

of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). On appeal,

Dacres argues that his guilty plea is constitutionally defective and did not comply

with Rule 11 of the Federal Rules of Criminal Procedure because the district court

failed to ensure that Dacres understood the nature of the charges to which he

pleaded guilty, as the court never informed Dacres of the elements of the offenses

to which he pleaded guilty. Dacres also contends that the district court plainly

erred at the sentencing hearing by failing to ensure that Dacres had reviewed the

revised pre-sentence investigation report (PSI) with his counsel before the hearing.

                                           I.

      We review objections to the constitutionality of a guilty plea and a Rule 11

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

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

“To establish plain error, a defendant must show there is (1) error, (2) that is plain,

and (3) that affects substantial rights.” Id. at 1019; United States v. Olano, 507

U.S. 725, 731–32, 113 S. Ct. 1770, 1776 (1993). “Under plain error review, the

defendant bears the burden of persuasion with respect to prejudice or the effect on

substantial rights.” Moriarty, 429 F.3d at 1019 (internal citation and quotation


                                           2
              Case: 14-13969      Date Filed: 08/26/2015     Page: 3 of 10


marks omitted). If all three factors are met, we may exercise our discretion and

correct the error if it “seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” Olano, 507 U.S. at 732, 113 S. Ct. at 1776 (internal

quotation marks omitted).

      The Due Process Clause requires that a defendant’s guilty plea be made

voluntarily and knowingly. McCarthy v. United States, 394 U.S. 459, 466, 89 S.

Ct. 1166, 1171 (1969). A guilty plea cannot be voluntary and knowing “unless the

defendant received real notice of the true nature of the charges against him.”

Henderson v. Morgan, 426 U.S. 637, 645, 96 S. Ct. 2253, 2257 (1976) (internal

quotation marks omitted). Rule 11 was “designed to assist the district court in

making the constitutionally required determination that a defendant’s guilty plea is

truly voluntary.” McCarthy, 394 U.S. at 465, 89 S. Ct. at 1170. A district court

that accepts “a guilty plea must comply with Rule 11 and specifically address three

‘core principles,’ [which ensure] 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. Moreover, “[a] variance

from the requirements of [Rule 11] is harmless error if it does not affect substantial

rights.” Fed. Rule Crim. Proc. 11(h). A Rule 11 violation affects a defendant’s

substantial rights if the defendant can show a “reasonable probability that, but for

the error, he would not have entered the plea.” See United States v. Dominguez


                                            3
              Case: 14-13969     Date Filed: 08/26/2015   Page: 4 of 10


Benitez, 542 U.S. 74, 83, 124 S. Ct. 2333, 2340 (2004). However, because the

violation alleged here is both Rule 11 and due process, we need not determine

whether or not Dacres has shown there was a “reasonable probability that, but for

the error, he would not have entered the plea” if there is no plain error under a

traditional due process analysis. Id. (“the violation claimed was of Rule 11, not of

due process”).

      There is no set formula that must be applied in determining whether the

district court adequately informed the defendant of the nature of the charges

brought against him; rather, the level of inquiry “varies from case to case

depending on the relative difficulty of comprehension of the charges and of the

defendant’s sophistication and intelligence.” United States v. Camacho, 233 F.3d

1308, 1314 (11th Cir. 2000) (internal quotation marks omitted). We have held that

“a reading of the indictment, followed by an opportunity given the defendant to ask

questions about it, will usually suffice.” United States v. James, 210 F.3d 1342,

1344–45 (11th Cir. 2000) (per curiam) (internal quotation marks omitted). To

determine whether a Rule 11 error occurred, we may consider the entire record, not

just the transcript of the Rule 11 hearing. United States v. Vonn, 535 U.S. 55, 74–

75, 122 S. Ct. 1043, 1054–55 (2002). This court has recognized that the Rule 11(c)

colloquy may be done in different ways depending on various factors. United

States v. Wiggins, 131 F.3d 1440, 1443 (11th Cir. 1997) (per curiam). “Rule 11(c)


                                          4
              Case: 14-13969     Date Filed: 08/26/2015    Page: 5 of 10


does not specify that a district court must list each element of the offense

seriatim…there is no one mechanical way or precise juncture that a district court is

required to inform the defendant of the nature of the charges in the Rule 11

colloquy.” Id at 1442–43.

      The appellant cites to three published decisions where we have concluded

that plain error resulted when a district court failed to ensure that the defendant

understood the nature of the charges against him. See United States v. Telemaque,

244 F.3d 1247 (11th Cir. 2001) (per curiam); James, 210 F.3d 1342; United States

v. Quinones, 97 F.3d 473 (11th Cir. 1996) (per curiam), abrogated by Vonn, 535

U.S. at 74–75, 122 S. Ct. at 1054–55, as recognized in United States v. Monroe,

353 F.3d 1346, 1350 n.3 (11th Cir. 2003). In Telemaque, we concluded that the

district court did not adequately inform the defendant of the charges against him

where the district court only asked the defendant whether he had read the

indictment and understood what he was charged with, and did not refer to the

elements of the offense or inquire whether the defendant’s counsel assisted him in

understanding the charges. 244 F.3d at 1249. We noted that, although the charge

of possessing cocaine with intent to distribute was not particularly complex, the

circumstances did not suggest the defendant would understand even such simple

offenses without some explanation, as he had immigrated to the United States at

age sixteen, finished at the bottom of his high school class, and did not have any


                                           5
              Case: 14-13969     Date Filed: 08/26/2015    Page: 6 of 10


prior involvement with the court system. Id. In James, we held that the record did

not indicate that the defendant understood the elements comprising a complex

charge involving racketeering because there was a complete absence of any

reference to the elements of the charge during the plea hearing, in the plea

agreement, or the facts supporting the charge. 210 F.3d at 1345–46. In Quinones,

we concluded that a district court failed to ensure that the defendant understood the

nature of the charges against him, which involved carrying a firearm in connection

to trafficking cocaine, where the district court only asked if he had received a copy

of the indictment and reviewed it with his attorney, the district court never

mentioned the elements of the charged offense involving the firearm, and the

defendant stated, “I plead guilty I guess.” 97 F.3d at 474–75.

      In contrast, we held in United States v. DePace that the district court did not

plainly err, despite not explicitly addressing the elements of the aiding and abetting

theory of liability on a charge of carrying a firearm in relation to a drug trafficking

crime, because it implicitly found that the defendant understood the nature of the

charges. 120 F.3d 233, 238 (11th Cir. 1997). The district court determined that

the defendant had graduated from high school and had completed some college, the

court read the indictment, listed the essential elements, and confirmed that the

defendant had reviewed the plea agreement and the indictment with his counsel,




                                           6
              Case: 14-13969     Date Filed: 08/26/2015     Page: 7 of 10


and, after the court confirmed that defendant agreed with the factual proffer, the

court asked the defendant whether he had any questions about the proceedings. Id.

      The district court here did not plainly violate the Due Process Clause’s

requirement, and Rule 11’s core concern, of ensuring that Dacres’s plea was

knowing and voluntary. The district court asked Dacres whether he had reviewed

and discussed the indictment, the plea agreement, and the written factual proffer

with his attorney. Unlike the incomplete recitation of the elements of the complex

crime in James by the defendant at the behest of the trial court, the written factual

proffer here contained a clear and concise fact pattern which included the factual

basis for all the elements of much simpler charged offenses. See James, 210 F.3d

at 1346. Dacres was given the written factual proffer, which he read and then

signed. Dacres was able to read the indictment, then read the concise proffer for

the factual basis, and then turn to the plea agreement, which included a description

of each charge, and make an informed decision with his attorney before he entered

his plea, and the trial court verified in open court that he did all of this. Dacres

stated that he had a full opportunity to discuss the charges with his attorney and

that he understood every term of the plea agreement and the indictment. Dacres

further stated that he agreed with the written proffer that he signed. Furthermore,

the charges were not so complex as to prevent Dacres—a high school graduate

who had no history of mental problems, with the exception of a school-age


                                           7
               Case: 14-13969     Date Filed: 08/26/2015   Page: 8 of 10


diagnosis as emotionally handicapped—from understanding them. See Depace,

120 F.3d at 237. Dacres pled to possessing over 15 social security numbers with

intent to defraud in count one and possessing one specific person’s social security

number in count two, and the government agreed to drop the other five counts.

The factual proffer explains, among other things, that a search warrant revealed

over 1,750 social security numbers at Dacres’s home. It cannot be said that these

charges were particularly complex.

       The district court was not required to orally recite the elements of the

charged offense in a particular fashion; the district court was required to make sure

Dacres understood the nature of the charges. See Wiggins, 131 F.3d at 1442–43.

The district court ensured Dacres understood the nature of the charges when it

inquired whether he read the indictment, plea agreement, and factual proffer with

his attorney. While factual bases are often recited in open court, the written proffer

here is convenient for the defendant. As in DePace, the district court did not need

to perform some exhaustive oral recitation and go over all of this information again

when it was apparent, under all the circumstances, that the defendant understood

the charges against him. See DePace, 120 F.3d at 238. Therefore, we hold that the

district court did not plainly err.




                                           8
              Case: 14-13969      Date Filed: 08/26/2015     Page: 9 of 10


                                            II.

      When a defendant raises an objection for the first time on appeal, review is

for plain error only. United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010).

“It is the law of this circuit that, at least where the explicit language of a statute or

rule does not specifically resolve an issue, there can be no plain error where there

is no precedent from the Supreme Court or this Court directly resolving it.” See

United States v. Lejarde-Rada, 319 F.3d 1288, 1290–91 (11th Cir. 2003) (per

curiam). An error affects a party’s substantial rights if there is a reasonable

probability that the error affected the outcome of the case. United States v.

Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005).

      Rule 32 of the Federal Rules of Criminal Procedure provides that a district

court must verify at sentencing that “the defendant and the defendant’s attorney

have read and discussed the presentence report and any addendum to the report.”

Fed. R. Crim. P. 32(i)(1)(A). In applying a prior version of Rule 32, we held that

no specific inquiry was required in order for the district court to meet its

obligation, as long as there were some indicia in the record evidencing that counsel

had reviewed the PSI with the defendant. See United States v. Phillips, 936 F.2d

1252, 1255 (11th Cir. 1991).

      Dacres has not established that the district court plainly erred by violating

Rule 32. The alleged error of failing to ensure that Dacres had reviewed the


                                            9
             Case: 14-13969      Date Filed: 08/26/2015   Page: 10 of 10


revised PSI is not plain because the district court asked whether Dacres’s counsel

had been over “the PSI” with him, and there is no precedent requiring the district

court to specifically refer to the “revised” PSI when verifying whether the

defendant read and discussed the PSI with his counsel. Further, Dacres’s

objections during the sentencing hearing indicate that he had seen the revised PSI,

and thus suggest that his counsel’s reference to reviewing “the PSI” with Dacres

referred to the latest version of the PSI. Nevertheless, even assuming that the

district court did violate Rule 32, Dacres has not shown that this alleged error

affected his substantial rights. Notably, Dacres does not point to any prejudice

caused by the error and never actually asserts that he did not read or discuss the

revised PSI with his attorney.

      AFFIRMED.




                                          10
