     Case: 17-10553      Document: 00514321830         Page: 1    Date Filed: 01/25/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                    No. 17-10553                                FILED
                                  Summary Calendar                        January 25, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

LEE ROBERTSON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:15-CR-44-31


Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM: *
       Lee Robertson appeals his guilty-plea conviction for conspiring to
distribute oxycodone, for which he was sentenced to 84 months of
imprisonment and three years of supervised release. Robertson asserts that
his guilty plea was unknowing and involuntary because he had not been made
aware that his sentence would be based on drug transactions not mentioned in
the agreed factual resume supporting his guilty plea.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 17-10553

      Because a guilty plea involves the waiver of constitutional rights, it must
be entered voluntarily and knowingly. Brady v. United States, 397 U.S. 742,
748 (1970). The defendant must have a “full understanding of what the plea
connotes and of its consequence.” Boykin v. Alabama, 395 U.S. 238, 244 (5th
Cir. 1969). “Rule 11 of the Federal Rules of Criminal Procedure was designed
to ensure that a guilty plea is knowing and voluntary, by laying out the steps
a trial judge must take before accepting such a plea.”         United States v.
Alvarado-Casas, 715 F.3d 945, 949 (5th Cir. 2013) (internal quotation marks
and citation omitted). “A plain reading of Rule 11[(b)(1)(H)] requires the
district court to inform the defendant of the maximum possible penalty
applicable to each count to which the defendant is pleading guilty.” Id. at 954
(internal quotation marks, brackets, ellipsis, and citation omitted).
      Since Robertson did not challenge the validity of his guilty plea in the
district court, the plain-error standard of review applies.      See id. at 953.
Accordingly, to prevail in this appeal, Robertson “must show that (1) the
district court committed Rule 11 error, (2) the error was plain, (3) there is a
reasonable probability that but for the error, he would not have pleaded guilty,
and (4) the error seriously affected the fairness, integrity, or public reputation
of the proceedings.” Id.
      Robertson acknowledges that he was advised in the plea agreement and
by the district court of the statutory maximum prison term and fine for his
offense, and he concedes that, in United States v. Guerra, 94 F.3d 989, 995 (5th
Cir. 1996), we held that such advice is sufficient for a knowing guilty plea.
Robertson contends, however, that the Guerra holding is inappropriate
because the Guidelines are so widely applied that they are not merely advisory.
Robertson argues that a defendant who is not forewarned of the district court’s
consideration of unmentioned conduct is subject to a maximum sentence that



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                                  No. 17-10553

could be contemplated in theory but is unthinkable in practice, thus leaving
the defendant without the “full understanding of what the plea connotes and
of its consequence” that is required by Boykin, 395 U.S. at 244.
      Essentially, Robertson is conceding that his challenge to the knowing
and voluntary nature of his guilty plea is foreclosed by circuit precedent, and
he is arguing for a change in the law. However, “[i]t is a firm rule of this circuit
that in the absence of an intervening contrary or superseding decision by this
court sitting en banc or by the United States Supreme Court, a panel cannot
overrule a prior panel’s decision.” United States v. Lipscomb, 299 F.3d 303,
313 n.34 (5th Cir. 2002) (internal quotation marks and citation omitted).
Accordingly, Robertson has failed to show that his guilty plea was unknowing
and involuntary, much less plainly so, given that the district court admonished
him regarding the statutory maximum prison term and fine. See Alvarado-
Casas, 715 F.3d at 953-54; Guerra, 94 F.3d at 995. The judgment of the district
court is AFFIRMED.




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