                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         DEC 19 2003
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                     No. 02-5203
                                                        (N.D. Okla.)
 KATHRYN JEANELLE HELTZEL,                       (D. Ct. No. 98-CR-111-C)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      On January 28, 2002, Kathryn Heltzel pled guilty to Possession With Intent

to Distribute Methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (1998).


      *
       This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
She was sentenced, inter alia, to 180 months imprisonment. She appeals her

guilty plea, claiming it was infirm because she was not correctly informed of the

possible term of imprisonment she faced. 1 The Government confesses error.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

      Violation of 21 U.S.C. § 841(a)(1) is punishable, inter alia, by

imprisonment “which may not be less than 10 years or more than life.” 21 U.S.C.

§ 841(b)(1)(A)(viii). The indictment charging Heltzel with this offense did not

recite the range of possible punishment. In her Petition to Enter Plea of Guilty,

which she signed the same day she entered her plea, Heltzel acknowledged: “I

have been informed and understand a plea of guilty may subject me to a minimum

sentence of prison and/or fine.” (R. Vol. I, Doc. 54 at 3.) She also indicated:

“My attorney has informed me the plea of GUILTY could subject me to a

maximum punishment, which, as provided by law is no less than ten (10) years’

imprisonment . . . .” (Id.) Also, in the Petition, her attorney certified: “I have

advised the defendant as to any minimum sentence required by law, and I have

advised the defendant as to the maximum sentence possible under the applicable


      1
        Although Heltzel, in a plea agreement, waived her right to appeal, she
argues the entry of her plea was not knowing, voluntary and intelligent in the first
instance. We thus do not reach the question of whether to enforce the plea waiver
and it presents no bar to review of the plea. See United States v. Rubio, 231 F.3d
709, 712 (10th Cir. 2000) (if entry into a plea agreement is knowing and
voluntary, reviewing court will enforce waiver of appellate rights included in plea
agreement).

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statute(s).” (Id. at 7.) Heltzel added, “I further offer my plea of GUILTY with

full understanding of all matters set forth . . . in the certificate of my attorney

which is attached to this petition.” (Id. at 4.) The Plea Agreement Heltzel signed

on the same day provided: “The defendant acknowledges that the minimum and

maximum statutory sentences for Count One . . . [are] not less than ten years

and/or a fine of not more than $4,000,000.” (R. Vol. I, Plea Agreement, Doc. 53

at 10.)

      At the change of plea proceeding, in delivering the advisements required by

Fed. R. Crim. P. 11(c)(1), 2 the district court erroneously advised Heltzel, “the

maximum period of imprisonment the Court could impose under the statute would

be a period of imprisonment not exceeding ten years . . . .” (R. Vol III at 5.) This

recital went without objection. After she entered her plea, and the court accepted

it, Heltzel did not thereafter file a motion to withdraw her plea. The Presentence

Investigation Report (PSR), prepared in April 2002, accurately stated that the

punishment for the offense included imprisonment for not less than ten years or

more than life. It set a guideline range for the offense at 168 to 210 months.

Heltzel interposed no objection to the PSR after it was issued. Nor, at sentencing

on November 14, 2002, did she object to the term of imprisonment imposed by the

district court as somehow outside of or beyond her understanding of the maximum


      2
          Now found at Fed. R. Crim. P. 11(b)(1)(H) and (I).

                                          -3-
term that could be imposed by law.

      “Whether a district court has complied with Rule 11 in accepting a

defendant's plea and, accordingly, whether the defendant's plea was knowing,

intelligent, and voluntary, is a question of law we review de novo.” United States

v. Gigot, 147 F.3d 1193, 1197 (10th Cir. 1998) (quotation marks and citation

omitted). We review a Rule 11 omission, where, as here, there has been no

objection in the trial court, for plain error under Fed. R. Crim P. 52(b). United

States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Edgar, 348 F.3d 867, 871

(10th Cir. 2003). In order to be plain, the alleged error must be actual, it must be

obvious, and it must affect substantial rights. Edgar, 348 F.3d at 871 If these

three prerequisites are met, the reviewing court may find plain error where the

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

proceedings.” Id. (quotation marks and citation omitted). We apply the plain

error rule “less rigidly” when the alleged error is of constitutional dimension.

United States v. Jefferson, 925 F.2d 1242, 1254 (10th Cir. 1991). Finally, in

evaluating whether error affects substantial rights, we may consult the entire

record; we are not restricted to the plea colloquy. Vonn, 535 U.S. at 59. With

these principles in mind, we turn to the merits of Heltzel’s claim, and do so

notwithstanding the Government’s confession of error. Young v. United States,

315 U.S. 257, 258-59 (1942) (“[O]ur judicial obligations compel us to examine


                                          -4-
independently . . . errors confessed.”); United States v. Hurlich, 293 F.3d 1223,

1227 (10th Cir. 2002) (“A party's concession . . . cannot compel us to reverse a

district court's decision.”).

       Heltzel correctly points out the district court failed to comply with Rule

11’s requirement that it “must inform the defendant of, and determine that the

defendant understands . . . any maximum possible penalty, including

imprisonment . . . and . . . any mandatory minimum penalty . . . .” Fed. R. Crim.

P. 11(b)(1)(H), (I). The court advised only of the maximum possible penalty and,

by erroneously stating it to be a term of imprisonment of ten years, conveyed false

and misleading information. Thus, the error is actual. Furthermore, it is obvious.

The Rule’s language permits of no discretion. However, when we examine

whether the error affects Heltzel’s substantial rights, we find it does not. Rule 11

error is prejudicial, and therefore affects substantial rights, where the Appellant

can demonstrate she would not have pled guilty if the district court had complied

with the rule. Edgar, 348 F.3d at 872. We are convinced by the record as a

whole, Vonn, 535 U.S. at 59, that Heltzel would have pled guilty to the charge

even if the district court judge had correctly recited the penalty range as required

by Rule 11.

       The record clearly shows Heltzel was accurately, if inartfully, advised of

the penalties associated with the offense in her Petition to Enter Plea of Guilty


                                         -5-
and her Plea Agreement. She acknowledges as much on appeal. (Appellant’s Br.

at 10) In spite of this, she did not object when the court failed to inform her of

the mandatory minimum and misstated the maximum possible penalty at the

change of plea proceeding. “[T]he value of finality requires defense counsel to be

on his toes, not just the judge, and the defendant who just sits there when a

mistake can be fixed cannot just sit there when he speaks up later on.” Vonn, 535

U.S. at 73. “Both the attorneys and the court have a duty to apprise the defendant

of the consequences of the plea and ensure that it is voluntary.” United States v.

Williams, 919 F.2d 1451, 1456 (10th Cir. 1990), cert. denied, 499 U.S. 968

(1991). Tellingly, in the more than eleven months that transpired between her

guilty plea and sentencing, Heltzel did not move to withdraw her plea on account

of the alleged error. 3 Finally, she did not object, either prior to or at sentencing,

to the PSR issued more than six months before sentencing, which accurately

stated the penalties associated with her crime. These accumulated circumstances

do not describe a defendant who would not have pled guilty had she been properly

advised by the court of the penalties associated with her charge. Because the

error Heltzel identifies did not affect her substantial rights, it is not plain.




      3
       “A defendant may withdraw a plea of guilty . . . after the court accepts the
plea, but before it imposes sentence if . . . the defendant can show a fair and just
reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d).

                                           -6-
Accordingly, we AFFIRM the judgment of the district court.



                              Entered by the Court:

                              TERRENCE L. O’BRIEN
                              United States Circuit Judge




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