                    Case: 11-15987          Date Filed: 09/21/2012   Page: 1 of 7

                                                                         [DO NOT PUBLISH]


                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-15987
                                        Non-Argument Calendar
                                      ________________________

                            D.C. Docket No. 1:11-cr-00011-MP-GRJ-2


UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellee,

                                                  versus


NORBIN DEJESUS MEDINA,

llllllllllllllllllllllllllllllllllllllll                                 Defendant-Appellant.

                                     ________________________

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

                                           (September 21, 2012)

Before MARTIN, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Norbin DeJesus Medina appeals his convictions for a Hobbs Act robbery, in

violation of 18 U.S.C. § 1951, and use of a firearm in furtherance of a Hobbs Act

robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and § 924(c)(2), as well as the

special monetary assessment accompanying those convictions.

      The Indictment against Medina contained five counts, the first three relevant

here. Count One charged conspiracy to commit robbery under 18 U.S.C. § 1951;

Count Two charged robbery, also under 18 U.S.C. § 1951; and Count Three

charged carrying a firearm during the robbery under 18 U.S.C. § 924(c)(1)(A)(ii)

and § 924(c)(2). But, as Medina explains in his brief, “all parties and the court

below mixed up the counts of conviction.” Throughout the plea colloquy, in the

pre-sentence investigation report (PSR), at sentencing, and in the judgment, both

parties and the court used the label “Count One” mistakenly to refer to the

Indictment’s robbery count, which was actually Count Two.

      Now, Medina argues for the first time on appeal that the colloquy was

insufficient under Federal Rule of Criminal Procedure 11 and violated Due

Process under the Fifth Amendment of the United States Constitution. He asserts

that the confusion over the counts’ numbers caused him to plead guilty to the

substance of the robbery count, though “[i]t appears that the parties intended [him]

to plead guilty to Count 1, which charged Conspiracy.” Medina asks us to vacate

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his judgment and sentence for robbery because of this snafu, and remand the case

to the district court.1

       Medina also raises for the first time on appeal an objection to the amount of

the special monetary assessment levied against him for his convictions. He asserts

that the assessment should reflect the amount that the court stated during his

colloquy ($100), rather than the amount set forth in the written judgment against

him ($200), even though that latter figure accurately reflects the statutorily-

mandated amount for such an assessment.

       We review arguments raised for the first time on appeal in a criminal case

for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005);

see also United States v. Brown, 586 F.3d 1342, 1345 (11th Cir. 2009). Under

plain error review, the defendant must show: “(1) error, (2) that is plain, and (3)

that affects substantial rights.” Rodriguez, 398 F.3d at 1298 (quotation marks

omitted). Once those requirements are met, then we may exercise our discretion to

consider a forfeited error, if we conclude that “the error seriously affects the

       1
          Medina argues that the admitted facts, which related to robbery, do not establish a violation
for conspiracy to commit robbery because they do not show an agreement between the parties.
Based on this, he requests that, in addition to reversing his conviction for robbery, we order the
district court on remand to dismiss the conspiracy charge (Count One). By this request, Medina
seeks to have his cake and eat it, too. On the one hand, he asks to have his robbery conviction
overturned based on the district court’s error in referring to the robbery count as “Count One.” But,
at the same time, Medina tries to lock-in the district court’s mistaken dismissal of Count Two. For
reasons we go on to explain, this request proves moot.

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fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation

marks omitted).

      In his first claim, Medina argues that the district court plainly erred,

violating Federal Rule of Criminal Procedure 11 by consistently referring to

“Count One” while accepting Medina’s guilty plea and entering judgment for

robbery, which was actually Count Two in the Indictment. See Fed. R. Crim. P.

11(b)(1)(G) (requiring the district court to determine that a defendant understands

“the nature of each charge to which [he] is pleading”). To prevail on plain error

review, Medina must show “a reasonable probability that, but for the error, he

would not have entered the plea.” United States v. Dominguez Benitez, 542 U.S.

74, 83, 124 S. Ct. 2333, 2340 (2004).

      Medina has not shown or even asserted such a “reasonable probability.” Id.

He states that “[i]t appears that the parties intended Medina to plead guilty” to the

conspiracy charge, presumably implying that he would not have entered the plea

had he known it was for the robbery charge. The record, however, does not

support that assertion.

      The plea agreement itself offers no clarity on this point. Though Medina

signed a plea agreement admitting guilt for “COUNT ONE . . . of the

INDICTMENT,” we have no way of determining whether, at that stage, the parties

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had already mistakenly begun referring to the robbery charge as “Count One.”

Nor does the plea agreement’s reference to Medina’s violation of “18 U.S.C.

§ 1951,” aid us. After all, both the conspiracy and the robbery counts were

charged under § 1951.2

       The remainder of the record, however, shows that Medina intended to plead

guilty to robbery all along. First, the factual basis for Medina’s plea, which was

prepared by the government and signed by Medina, appears drafted to satisfy the

elements of a robbery charge. Second, during the plea colloquy, the district court

stated: “Mr. Medina, the charge against you in Count One is interference with

commerce by robbery,” and proceeded to read Medina the essential elements of

the robbery offense; the prosecutor then read aloud a factual statement intended to

establish probable cause for the robbery count, and Medina admitted those facts.

Third, at his sentencing hearing, Medina did not object to the PSR, which again

listed the robbery charge as “Count 1.” The record thus leads us to conclude that

Medina always intended to plead guilty to robbery, and that a clerical error was

what led the parties to start referring to the right charge (robbery) by the wrong


       2
         Medina notes that “the Indictment did not even properly allege [a] violation of the
[c]onspiracy statute, 18 U.S.C. § 371.” We fail to see why this fact is material. Count One was
brought under 18 U.S.C. § 1951, which contains its own basis for a charge of conspiracy. See 18
U.S.C. § 1951(a) (stating that the statute applies to whomever “obstructs, delays, or affects
commerce . . . by robbery . . . or attempts or conspires so to do . . . .”).

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count number. Having reached that conclusion, we will not reverse Medina’s

conviction.3

       Nevertheless, we recognize that a clerical error has been made. This clerical

error “really [does] not make any difference” to Medina’s sentence, United States

v. Diaz, 190 F.3d 1247, 1253 (11th Cir. 1999), since Counts One and Two of the

Indictment were charged under the same statute and therefore carried the same

sentence. But we still think it wise to vacate the judgment and remand the case so

that the district court can correct the error. See Fed. R. Crim. P. 36 (permitting the

court “at any time [to] correct a clerical error in a judgment, order, or other part of

the record, or correct any error in the record arising from oversight or omission”).

Thus, to ensure that the record accurately reflects Medina’s pleas of guilty and

convictions, we remand for the limited purpose of correcting the errors in the

judgment, and elsewhere in the record as appropriate. See Diaz, 190 F.3d at 1253.

       In his second claim, Medina argues that the $100 special assessment

pronounced by the district court at sentencing should apply, rather than the written

judgment’s levy of a $200 special assessment. Medina is correct that, when the

oral pronouncement of sentence unambiguously conflicts with the written


       3
         Medina’s Due Process argument rested on his factual assertion that he was convicted of a
crime for which he was not found guilty. We necessarily rejected that assertion when we concluded
that he knowingly pleaded guilty to robbery.

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judgment, generally the oral pronouncement controls. See United States v.

Bonilla, 579 F.3d 1233, 1245 (11th Cir. 2009). In this case, however, this general

principle gives no basis for vacating the judgment. That is because the relevant

statute requires a special assessment of $100 for each felony conviction. See 18

U.S.C. § 3013(a)(2)(A). Reinstating the oral pronouncement that imposed an

assessment of $100 for two convictions would therefore amount to ordering the

district court to violate the law. We decline to set aside the judgment on this basis.

      For these reasons, we affirm Medina’s convictions and special monetary

assessment, but we remand this case for the district court to correct its judgment

and other parts of the record, as appropriate.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.




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