             Case: 15-15788     Date Filed: 06/08/2018   Page: 1 of 10


                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 15-15788
                             Non-Argument Calendar
                           ________________________

                     D.C. Docket No. 9:15-cr-8077-DTKH-7

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

DAVID CHIDDO,
a.k.a. D-Money,

                                                             Defendant-Appellant.
                           ________________________

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

                                  (June 8, 2018)

Before TJOFLAT, MARCUS, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      David Chiddo appeals his conviction, following a guilty plea, for conspiracy

to possess with intent to distribute cocaine. Chiddo argues that the Magistrate

Judge erred by accepting his felony guilty plea without a referral order and without
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entering a report and recommendation (“R&R”), and by misadvising him of his

right to object to that acceptance to the District Court. He further argues that the

Magistrate Judge erred by failing to ensure that a factual basis existed for his plea

and that he understood the nature of the offense.

      But we find no plain error in the Magistrate Judge’s conduct here. The

Magistrate Judge did not plainly err in accepting Chiddo’s guilty plea because

Chiddo consented to the Magistrate Judge conducting the plea hearing, a

magistrate judge can conduct a change-of-plea hearing without entering an R&R,

and no statute or binding precedent requires a specific referral order. The

Magistrate Judge adequately advised Chiddo of his ability to challenge the

acceptance of the plea before the District Court, and Chiddo had the opportunity to

do so. Moreover, Chiddo invited any alleged errors by the Magistrate Judge,

precluding their review.

      Accordingly, we affirm.

                                         I.

      This Court applies plain error review to statutory and constitutional

challenges to a magistrate judge’s acceptance of a felony guilty plea raised for the

first time on appeal. United States v. Woodard, 387 F.3d 1329, 1331 (11th Cir.

2004) (per curiam). “The four-prong test to establish plain error is: (1) there must

have been an error; (2) the error must have been plain; (3) the error must have

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seriously affected substantial rights; and (4) the error must have seriously affected

the fairness, integrity, or public reputation of the judicial proceedings.” Id. To be

sufficiently “plain,” the alleged error “must be clear from the plain meaning of a

statute or constitutional provision, or from a holding of the Supreme Court or this

Court.” United States v. Rodriguez, 627 F.3d 1372, 1381 (11th Cir. 2010).

       The powers of magistrate judges are set forth in the Federal Magistrate Act

(“FMA”), 28 U.S.C. §§ 631–36. Magistrate judges may “hear and determine any

pretrial matter pending before the court, except” certain types of motions. Id.

§ 636(b)(1)(A). Magistrates may also conduct hearings and submit to the district

court proposed findings of fact for, and recommendations for the disposition of,

certain enumerated matters, including the motions excepted in § 636(b)(1)(A). Id.

§ 636(b)(1)(B). A magistrate judge must file proposed findings and

recommendations with the court and mail a copy to all parties. Id. § 636(b)(1)(C).

Importantly, the statute’s “catchall” clause states that “[a] magistrate judge may be

assigned such additional duties as are not inconsistent with the Constitution and

laws of the United States.” Id. § 636(b)(3) (emphasis added).

      In Woodard, we addressed whether a magistrate judge has the authority to

accept a defendant’s felony guilty plea and adjudicate him guilty. 387 F.3d at

1331. Woodard consented to a magistrate judge conducting his change-of-plea

hearing and a Federal Rule of Criminal Procedure 11 colloquy, after the Magistrate

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Judge explained that he was a magistrate and that Woodard had the right to have

the District Court conduct the hearing. Id. at 1330. The Magistrate Judge accepted

Woodard’s guilty plea, stating “[t]he plea is, therefore, accepted by me, and the

defendant is now adjudged guilty of that offense.” Id. The Magistrate Judge did

not prepare an R&R. Id. at 1334. At sentencing, 1 Woodard did not object to the

sentence imposed or to the plea colloquy conducted by the Magistrate. Id. at

1330–31.

           We first determined that conducting a Rule 11 proceeding is comparable to

the duties enumerated in the FMA. Id. at 1333. We therefore held that a

magistrate judge has the authority under the FMA’s catchall “additional duties”

clause to conduct Rule 11 proceedings and accept a felony guilty plea, when the

defendant consents. Id.; 28 U.S.C. § 636(b)(3). In so holding, we noted that “the

presence or absence of consent” is the “crucial factor” in determining what the

additional duties clause encompasses. Woodard, 387 F.3d at 1332. We then held

that this statutory delegation to a magistrate judge did not violate Article III

because a district court, as a matter of law, retains the ability to review the Rule 11

proceeding if requested by the Defendant. Id. at 1334.

       This Court later clarified the circumstances giving rise to the appeal in

Woodard, our holding, and the reasoning behind it as part of our decision in Brown

       1
           Woodard’s sentencing hearing was conducted by the district judge. Woodard, 387 F.3d
at 1330.
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v. United States. See 748 F.3d 1045, 1071 n.53 (11th Cir. 2014). The District

Court in Woodard had referred the proceeding to the Magistrate Judge “with

instructions to submit a report and recommendation regarding all pretrial motions.”

Id. The Brown District Court clarified “the mechanics of the district court’s

actions” in Woodard, stating that although the Magistrate did not err by accepting

Woodard’s plea and adjudicating him guilty, in fact the District Court had made

the final adjudication of guilt by entering judgment. Id. We concluded that

regardless of whether a magistrate judge categorizes his actions as acceptance of a

plea or an R&R, a magistrate judge’s actions in a Rule 11 hearing are “akin to a

report and recommendation rather than a final adjudication of guilt.” Moreover,

such actions by a magistrate judge do not violate Article III because a district court

retains the ability to review the plea as a matter of law, if requested. See Id.

       Although this Court has not squarely addressed whether a formal referral

order is required before a magistrate judge may conduct a Rule 11 hearing and

accept a guilty plea, we have stated that § 636(b)(1) does not require a written

referral order. Jeffrey S. by Ernest S. v. State Bd. of Educ. of Ga., 896 F.2d 507,

511 n.13 (11th Cir. 1990).2 Nothing in the statutory language requires a formal or

written referral order. See 28 U.S.C. § 636(b)(1). The Southern District of


       2
          We also noted that “[s]ome courts have expressed the sound opinion that a written
referral would be good practice.” Jeffrey S. by Ernest S., 896 F.2d at 511 n.13 (11th Cir. 1990)
(citations omitted).
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Florida’s local rules state that a district judge may refer a matter to a magistrate

judge, and “[n]o specific order of reference shall be required except as otherwise

provided in these [rules].” S.D. Fla. Magistrate Judge R. 2.

      Rule 11 of the Federal Rules of Criminal Procedure provides that a

defendant may withdraw a guilty plea before the court accepts the plea, for any

reason or no reason; or 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)(1)–(2).

      Here, Chiddo argues that the Magistrate Judge exceeded his authority by

accepting his guilty plea without an order of referral from the District Court and

without entering an R&R; and that the Magistrate misadvised him that he could

appeal prior to sentencing, when the correct procedure would have been for him to

object to an R&R. These arguments are unavailing.

      Chiddo has not demonstrated that the Magistrate Judge here erred, let alone

plainly so. First, § 636(b)(3) requires merely that the magistrate “be assigned”

additional duties. It does not impose any particular method of assignment. Our

precedent indicates no written referral order is required. See Jeffrey S. by Ernest

S., 896 F.2d at 511 n.13. We can, moreover, infer from the relevant Southern

District of Florida local rule, and the District Court’s acknowledgement at

sentencing of Chiddo’s guilty plea before the Magistrate, that the District Court

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“assigned” the matter to the Magistrate by some effective means. Chiddo has not

pointed to any statute, constitutional provision, or Supreme Court or Eleventh

Circuit holding requiring a written referral order before a magistrate may conduct a

Rule 11 hearing. 3 Rodriguez, 627 F.3d at 1381. Accordingly, Chiddo

demonstrates no plain error by the Magistrate Judge in accepting Chiddo’s guilty

plea without a formal order of referral.

       Second, no authority mandates that a magistrate judge enter an R&R after he

conducts a plea hearing. See Woodard, 387 F.3d at 1334 (finding no plain error

where the Magistrate Judge accepted a guilty plea without entering an R&R). 4

Third, the Magistrate Judge adequately advised Chiddo of his ability to challenge




       3
          In support of this position, Chiddo primarily relies on United States v. Bolivar-Munoz,
313 F.3d 253, 255 (5th Cir. 2002). There, the Fifth Circuit found that a memorandum issued
almost three years before the defendants’ cases, which merely laid out general procedural
instructions to the Magistrate, was not a proper referral order. Id. at 255–56.
        Chiddo’s reliance is misguided. First, of course, this Fifth Circuit case does not bind this
Court and thus cannot establish plain error. Moreover, even if Bolivar-Munoz bound this Court,
it would in fact support the conclusion that Chiddo waived his right to raise this procedural
defect by failing to object to the Magistrate Judge’s actions in the District Court. See id. at 256
(finding that the defendants waived their right to object to the Magistrate’s actions by failing to
raise the procedural defect before the District Judge had accepted pleas, sentenced the
defendants, and entered judgment).
       4
          In support of his argument on this point, Chiddo relies on Brown for the proposition that
§ 636 requires a magistrate judge to enter an R&R in plea proceedings. This mischaracterizes
Brown. There, this Court merely stated that a magistrate judge’s actions in plea proceedings “are
akin to a report and recommendation” because a district court retains the ability to review the
proceeding as a matter of law, if requested. Brown, 748 F.3d at 1072 n.53.
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the plea,5 Chiddo had the opportunity to challenge the plea,6 and Chiddo consented

to the Magistrate Judge conducting the plea hearing.7

       Thus, Chiddo has not pointed to binding authority requiring a magistrate

judge to be assigned duties by referral order or to enter an R&R following a plea

hearing the magistrate conducted. Neither has he pointed to binding authority

indicating that the Magistrate misadvised Chiddo regarding his right to challenge

the plea. Accordingly, the Magistrate Judge did not plainly err. See Rodriguez,

627 F.3d at 1381.

                                                 II.

       When a party induces or invites the court below into making an error, we are

precluded from invoking the plain error rule and reversing. See United States v.



       5
         The Magistrate Judge was not, as Chiddo argues, required to tell Chiddo he could file
objections to an R&R. As discussed above, the Magistrate Judge was not required to enter one.
       6
          The Magistrate Judge informed Chiddo of his right to challenge his plea before
sentencing: “you may appeal that plea of guilt to the District Judge, and if you do that, you must
do so before your sentencing . . . . I advise you that failure to file timely objections related to the
plea before District Judge or Court of Appeals will result in waiver.” Chiddo indicated, under
oath, that he understood. Chiddo’s argument that he lacked the opportunity to challenge his plea
without a district court order fails—he could have filed a motion to withdraw plea before
sentencing, or objected at sentencing when the District Court asked if he had any objections.
Chiddo failed to do either.
       7
          Chiddo challenges the Magistrate Judge’s authority under § 636 and Article III to accept
his guilty plea. But a magistrate judge’s actions in a Rule 11 proceeding are effectively an R&R,
not a final adjudication of guilt. Brown, 748 F.3d at 1071 n.53. The Magistrate Judge had
authority to conduct the hearing under § 636, because Chiddo expressly consented; and the
delegation of this duty did not violate Article III, because the District Court retained the ability to
review the plea if Chiddo had so requested. See Woodard, 387 F.3d at 1330, 1333. Finally,
because no procedural errors occurred, we need not address Chiddo’s argument that consent
cannot cure the errors alleged.
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Love, 449 F.3d 1154, 1157 (11th Cir. 2006). A defendant can invite such error

through his actions during the plea process and at sentencing. See id. (concluding

that the defendant invited any error by the District Court in sentencing him to five

years of supervised release where he signed a plea agreement acknowledging that

the Court could impose such a sentence and did not object at sentencing to a

sentence including supervised release).

      This Court has held (albeit in an unpublished opinion) that a defendant

invited the alleged errors at his plea colloquy—of failing to ensure that he

understood the nature of the charges against him and failing to ensure an adequate

factual basis existed—when he (1) agreed at the plea colloquy that the elements of

the offense were correctly stated and that the stipulated factual proffer provided a

sufficient factual basis, and (2) failed to object to the basis of the conviction at the

plea hearing or at sentencing. United States v. Peerani, 576 F. App’x 949, 950

(11th Cir. 2014); see also United States v. Daniels, 225 F. App’x 795, 796 (11th

Cir. 2007) (determining that the defendant invited any error in accepting his guilty

plea without a sufficient factual basis, because he had petitioned the Court to

accept his plea even though he denied specific knowledge of the type of drug

involved in his offense).

      Here, Chiddo invited any alleged errors by the Magistrate Judge. Chiddo

stated at his change-of-plea hearing that he had received a copy of the superseding

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indictment, had fully discussed the charges with counsel, and was fully aware of

the charges. He also stated that he had read and understood the stipulated factual

basis and discussed it with counsel before signing it, i.e., agreeing that the facts

stated therein provided a sufficient factual basis for entry of his guilty plea, and

that he agreed to the elements of the offense set forth therein. Finally, Chiddo

failed to object to the factual basis of the conviction at the plea hearing and at

sentencing. The circumstances here thus mirror those in Peerani, 576 F. App’x at

950. Therefore, because Chiddo invited any error by the Magistrate Judge in

determining that he understood the nature of the charges against him and that there

was a sufficient factual basis for the guilty plea, this Court is precluded from

reviewing these claims. 8 See Love, 449 F.3d at 1157.

       AFFIRMED.




       8
         Even if this Court determined that Chiddo’s claims are not barred by invited error,
Chiddo would have to overcome the high hurdle of plain error review because he failed to raise
these issues in district court. See United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003).
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