           Case: 16-11221   Date Filed: 08/14/2018   Page: 1 of 6


                                                     [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-11221
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 2:11-cr-00157-WHA-CSC-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

MARSHA DIANE ELMORE,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                      ________________________

                             (August 14, 2018)

Before TJOFLAT, WILSON and JULIE CARNES, Circuit Judges.

PER CURIAM:
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       Marsha Elmore appeals her convictions, obtained via plea agreement, and

total sentence for one count of filing false income tax returns, one count of wire

fraud, and one count of identity theft. No transcription of Elmore’s change-of-plea

hearing exists. We thus remanded her case to the District Court under Federal

Rule of Appellate Procedure 10(e)(2) for the limited purpose of preparing, if

possible, a certified record of the hearing. The District Court did just that. Elmore,

however, argues here that the District Court’s reconstruction of the record is

inadequate and does not accord effective appellate review, requiring her

convictions and sentence to be vacated.1 The Government disagrees, contending

that the reconstructed record is adequate—at the very least, this Court can

meaningfully review Elmore’s decision at the hearing to waive her right to this

appeal. We agree with Elmore and accordingly vacate her convictions and total

sentence and remand her case to the District Court for further proceedings.

       Under 28 U.S.C. § 753(b), “all proceedings in criminal cases had in open

court” must be “recorded verbatim by shorthand, mechanical means, electronic

sound recording, or any other method.” But a defendant is not entitled to a new

trial every time there is an omission from a transcript. United States v. Preciado-

Cordobas, 981 F.2d 1206, 1212 (11th Cir. 1993). When, as here, a defendant is

represented on appeal by an attorney who did not participate in the relevant hearing

       1
        She also contends in the alternative that her total sentence is substantively unreasonable.
Because we side with Elmore on her primary argument, we do not reach this point.
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in the trial court, a reconstructed record is inadequate if there remains a

“substantial and significant omission” from the transcript. See id. The defendant

need not allege that a specific error occurred during the untranscribed portion of

the hearing or show that she suffered specific prejudice. United States v. Selva,

559 F.2d 1303, 1306 (5th Cir. 1977).2 Whether an omission is substantial and

significant may be decided only after the district court has attempted to reconstruct

the missing portions of the hearing. Preciado-Cordobas, 981 F.2d at 1212. On a

remand for reconstruction, the district court may consider whatever evidence or

testimony it sees fit. United States v. Novaton, 271 F.3d 968, 993 (11th Cir. 2001).

If the reconstructed record, when taken as a whole, accords effective appellate

review, there can be no substantial and significant omission. Preciado-Cordobas,

981 F.2d at 1213.

       Here, during the reconstruction of Elmore’s change-of-plea hearing that took

place below, no specific evidence was presented detailing what transpired. Rather,

the evidence used to reconstruct the record was primarily habit evidence: the

Magistrate Judge who took Elmore’s guilty plea stated at an evidentiary hearing

that in conducting Federal Rule of Criminal Procedure 11 proceedings he typically


       2
         Fifth Circuit decisions issued on or before September 30, 1981 are binding in our
Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc). Due to our
prior-panel rule, we decline the Government’s invitation to reconsider Selva. See United States
v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (“[A] prior panel’s holding is binding on all
subsequent panels unless and until it is overruled or undermined to the point of abrogation by the
Supreme Court or by this court sitting en banc.”).
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follows (but not verbatim) the outline contained in the Federal Judicial Center’s

Benchbook for U.S. District Judges. The Magistrate Judge also stated that his

standard practice is to repeat twice to the defendant that the defendant is

specifically giving up the right to appeal, with certain exceptions. Moreover, at

this evidentiary hearing, the attorney who represented the Government in the

change-of-plea hearing stated that it was his “general practice” to confirm that a

defendant was advised of her right to appeal and of the impact of an appeal waiver.

Aside from habit evidence, the Government points out that Elmore’s trial counsel

testified that he did not recall anything unusual occurring during the hearing and

that he believed the Magistrate Judge followed his typical practice of asking the

defendant twice if she understood the effect of an appeal waiver. 3 Finally, the

Government contends that circumstantial evidence bolsters its claim that the record

was adequately reconstructed. Namely, the hearing took nineteen minutes to

complete, which is long enough to go through Rule 11’s requirements, and Elmore

later confirmed at her sentencing hearing that she understood her limited appeal

rights in light of the appeal waiver contained her in plea agreement.4


       3
         We note the Government’s concession that the recollection of Elmore’s trial counsel
was not independent of the effect of the Magistrate Judge’s statement describing his practice of
twice addressing appeal waivers.
       4
        The Government emphasizes that even if all parts of the change-of-plea hearing were
not adequately reconstructed, the evidence provided sufficiently substantiates the portion of it in
which Elmore waived her right to bring this appeal. Elmore counters that even were that so, it
would not preclude her appeal, as a judicially enforceable appeal waiver does not prevent a
                                                 4
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       On this evidence, the District Court entered an order certifying to this Court

that the reconstructed record reflects that Elmore, at her change-of-plea hearing,

was properly advised of all her rights as required by Rule 11. Its reconstruction

summarily lists the rights of which Elmore was advised and states that

       the court determined that Elmore’s entry of her guilty plea was a
       knowing and voluntary plea supported by an independent basis in fact
       containing each of the essential elements of the offenses to which she
       pled guilty, Fed. R. Crim. P. 11(b)(3), and that Elmore understood the
       plea agreement and that even if the court did not accept the agreement
       she could not withdraw her guilty plea.

       This bare reconstruction does not allow meaningful appellate review. It fails

to provide Elmore’s appellate counsel any way to search for and raise on appeal

possible errors that occurred at the change-of-plea hearing. 5 This is significant in

light of the District Court’s recognition that Elmore thought “that she may have

raised some concerns with her attorney during the proceedings.” We, like

Elmore’s appellate counsel, are unable to determine whether the change-of-plea

hearing was properly conducted and whether Elmore’s guilty plea was effectively

entered. And we do not accept the proposition that because it is the Magistrate

Judge’s practice to properly hold hearings, we can assume he did so here.

challenge to the voluntariness of a guilty plea. Because we hold that the change-of-plea hearing
was not adequately reconstructed as a whole—including the portion where Elmore allegedly
waived her right to an appeal—we need not decide this issue.
       5
         See Hardy v. United States, 375 U.S. 277, 288, 84 S. Ct. 424, 431 (1964) (Goldberg, J.,
concurring) (“[T]he most basic and fundamental tool of [an appellate advocate’s] profession is
the complete trial transcript, through which his trained fingers may leaf and his trained eyes may
roam in search of an error, a lead to an error, or even a basis upon which to urge a change in an
established and hitherto accepted principle of law.”).
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Accepting such an assumption is not tantamount to conducting meaningful review.

The rest of the evidence additionally falls short; there remains a “substantial and

significant omission” as to what transpired at the change-of-plea hearing.

      Because the reconstructed record does not allow for effective appellate

review of Elmore’s change-of-plea hearing, we vacate her convictions and total

sentence, and remand her case to the District Court for further proceedings.

      VACATED AND REMANDED.




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