              Case: 16-11047     Date Filed: 04/13/2017   Page: 1 of 11


                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 16-11047
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 3:14-cr-00056-CAR-CHW-1

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                        versus

JAMIE ELDRED BLACK,

                                                                Defendant-Appellant.

                           ________________________

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

                                  (April 13, 2017)

Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Jamie Eldred Black appeals his convictions for interstate travel in aid of

racketeering enterprises, in violation of 18 U.S.C. § 1952(a)(3). Black argues: (1)

for the first time, that the district court did not comply with Fed. R. Crim. P. 11 and
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that his guilty plea was not knowing and voluntary due to his mental health at the

time of the change-of-plea hearing; and (2) that his counsel was ineffective for

allowing him to enter a plea that was not knowing and voluntary or supported by

the facts, for failing to object to his two-level enhancement pursuant to U.S.S.G. §

2D1.1(b)(1), for failing to object to his consecutively imposed sentences, and for

failing to file a sentencing memorandum. After careful review, we affirm.

      First, we are not persuaded by Black’s claim that the district court plainly

erred at his change-of-plea hearing. If a defendant does not object to the plea

proceedings, nor move to withdraw the plea, we review the district court’s

compliance with Rule 11 for plain error. United States v. Quinones, 97 F.3d 473,

475 (11th Cir. 1996), abrogated on other grounds by United States v. Vonn, 535

U.S. 55 (2002). To show plain error, a defendant must establish that: (1) there was

error; (2) that was plain; and (3) that affected his substantial rights. United States

v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). If all three conditions are met,

we may exercise our discretion to notice the error, but only if the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings. Id. “An

error is plain if it is obvious and clear under current law.” United States v.

Eckhardt, 466 F.3d 938, 948 (11th Cir. 2006). A defendant who seeks reversal of

his conviction after a guilty plea, claiming the district court committed plain error

under Rule 11, must show a reasonable probability that, absent the error, he would


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not have pleaded guilty. United States v. Dominguez Benitez, 542 U.S. 74, 83

(2004).

      Under Rule 11, a district court must address a defendant personally in open

court and inform him of, and ensure that he understands the nature of the charge to

which the plea is offered and the potential consequences of that plea. United States

v. Lewis, 115 F.3d 1531, 1535 (11th Cir. 1997). To determine whether a guilty

plea is knowing and voluntary, a court accepting a guilty plea must comply with

Rule 11 by ensuring that: (1) the guilty plea is free from coercion; (2) the

defendant understands the nature of the charges; and (3) the defendant understands

the direct consequences of his plea. United States v. Jones, 143 F.3d 1417, 1418-

19 (11th Cir. 1998). We review the whole record to determine whether these

concerns were satisfied. United States v. Moriarty, 429 F.3d 1012, 1020 n.4 (11th

Cir. 2005). There is a strong presumption that statements made during a plea

colloquy are true. United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994).

      Under Rule 11, before a court can accept a guilty plea, it must inform the

defendant of: (1) the right to plead not guilty; (2) the right to a jury trial; (3) the

right to be represented by counsel at every stage of the proceedings; (4) the right to

confront and cross-examine adverse witnesses; (5) the right to testify and compel

the attendance of witnesses; (6) the right against compelled self-incrimination; (7)

the nature of each charge to which the defendant is pleading guilty; (8) the


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maximum and minimum penalties possible by law, including fines, supervised

release, and special assessments; (9) the possibility of restitution and any

applicable forfeiture; and (10) the court’s obligation to calculate the guideline

range and consider any possible departures under the Sentencing Guidelines. See

Fed. R. Crim. P. 11(b)(1)(B)-(E), (G)-(M). The district court must also explain

that a guilty plea waives the defendant’s trial rights. Fed. R. Crim. P. 11(b)(1)(F).

      Before entering a judgment on a guilty plea, the district court must first

“determine that there is a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3).

“The standard for evaluating challenges to the factual basis for a guilty plea is

whether the trial court was presented with evidence from which it could reasonably

find that the defendant was guilty.” United States v. Frye, 402 F.3d 1123, 1128

(11th Cir. 2005) (quotations omitted).

      Here, the district court did not plainly err in complying with Rule 11 and

ensuring that Black’s guilty plea was knowing and voluntary. As the record

shows, the district court advised Black at the outset of the change-of-plea hearing

of the rights he would be waiving. To the extent Black argues that the district

court was required to re-advise him of the rights he would be waiving following

the recess in which he agreed to a different plea deal, there is no binding precedent

requiring the district court to do so. Therefore, any alleged error could not be

plain. See Eckhardt, 466 F.3d at 948.


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      Moreover, the district court did not err, plainly or otherwise, in ensuring that

a factual basis for the plea existed. The government recited from a plea agreement

in which Black agreed he had traveled from South Carolina to Georgia on two

separate occasions where he purchased methamphetamine and then returned to

South Carolina with the drugs.     See Frye, 402 F.3d at 1128. While Black now

claims he was unaware that he was being held responsible for more than 157 grams

of “ice,” Black admitted at the plea hearing that he agreed with the government’s

factual statement that he was responsible for “219.1 grams of d-methamphetamine

hydrochloride with 96.7% purity, aka, 210.9 grams of ‘ice.’” We presume that

statements made during a plea colloquy are true. See Medlock, 12 F.3d at 187.

      It is also clear from our review of the record that the plea colloquy satisfied

the three core concerns of Rule 11. See Monroe, 353 F.3d at 1354; Jones, 143 F.3d

at 1418-19. As for the first concern, the district court confirmed with Black that he

was pleading guilty of his own free will and no one had forced, scared, or tricked

him into pleading guilty.      After the government amended the superseding

information, the district court again confirmed with Black that no one had made

any other promises or assurances of any kind to get Black to plead guilty. As for

the second concern, the district court confirmed that Black had gone over the

amended superseding information, understood what was contained in the

information, had a full opportunity to review the new plea agreement, understood


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the terms of the plea agreement, and understood and agreed with the facts as

outlined by the government. And, as for the third concern, the district court

advised Black that, by pleading guilty, he was waiving his right to plead not guilty

to any offense charged against him, his right to a jury trial, his right to be presumed

innocent at trial, his right to have the government prove his guilt beyond a

reasonable doubt, his right to not testify at trial, his right to an attorney at every

stage of the case, his right to cross-examine all witnesses who testified against him,

his right to present evidence and compel the attendance of witnesses by subpoena,

and his right to appeal any guilty verdict.

      Next, we are unconvinced by Black’s assertion that he did not have a full

understanding of the nature of the charges or the consequences of his plea. Rather,

the record shows that Black was examined by a psychiatrist who concluded that

Black was not suffering from a mental disease or defect and was able to understand

the nature and consequences of the proceedings against him and his testimony

during the plea colloquy. Black’s testimony during the plea colloquy further

indicated that he understood the proceedings. Black testified that, although he had

a history of Tourette syndrome and drug abuse, it did not affect his ability to

understand the proceedings. In addition, Black asked several questions throughout

the proceedings that indicated he had a full understanding of what he was pleading

to and the consequences of his plea, including objecting to the date of the offense


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as contained in the first superseding information and asking whether he would be

awarded an acceptance of responsibility reduction or a downward departure during

sentencing. On this record, we cannot say that the district court plainly erred in

ensuring that Black’s guilty plea was knowing and voluntary.

      Finally, we deny relief on Black’s claims that his counsel was ineffective.

When reviewing an ineffective assistance of counsel claim on direct appeal, we do

so de novo. United States v. Freixas, 332 F.3d 1314, 1316 (11th Cir. 2003) (noting

that ineffective assistance of counsel claims are a mixed question of law and fact).

      To sustain a claim for ineffective assistance of counsel, the defendant must

show that: (1) counsel’s performance was deficient; and (2) the deficient

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687

(1984). Counsel’s performance is deficient only if it falls below an objective

standard of reasonableness under prevailing professional norms.          Id. at 688.

Prejudice is a “reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Id. at 694. To establish

prejudice in the context of a guilty plea, the defendant must show that “there is a

reasonable probability that, but for counsel’s errors, he would not have pleaded

guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59

(1985). If the defendant makes an insufficient showing on one prong, we need not

address the other prong. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).


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      “[I]t is settled law in this circuit that a claim of ineffective assistance of

counsel cannot be considered on direct appeal if the claims were not first raised

before the district court and if there has been no opportunity to develop a record of

evidence relevant to the merits of the claim.” United States v. Franklin, 694 F.3d

1, 8 (11th Cir. 2012) (quotation omitted). The preferred means for deciding an

ineffectiveness claim is through a 28 U.S.C. § 2255 motion even if the record

contains some indication of deficiencies in counsel’s performance. United States

v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010). However, if the record is

sufficiently developed, we will consider this kind of claim on direct appeal. Id.

      Under the Sentencing Guidelines, a defendant’s offense level increases by

two levels if a dangerous weapon was possessed. U.S.S.G. § 2D1.1(b)(1). “The

enhancement should be applied if the weapon was present, unless it is clearly

improbable that the weapon was connected with the offense.”              U.S.S.G. §

2D1.1(b)(1), cmt. n.11(A). To justify a firearm enhancement, the government

must establish by a preponderance of the evidence either that: (1) the firearm was

present at the site of the charged conduct, or (2) the defendant possessed a firearm

during conduct associated with the offense of conviction.          United States v.

Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006). If the government meets its

burden, then the burden shifts to the defendant to show that a connection between

the weapon and the offense was clearly improbable. Id.


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      Under the Guidelines, “[i]f the sentence imposed on the count carrying the

highest statutory maximum is less than the total punishment, then the sentence

imposed on one or more of the other counts shall run consecutively, but only to the

extent necessary to produce a combined sentence equal to the total punishment.”

U.S.S.G § 5G1.2(d). We have interpreted § 5G1.2(d) of the Sentencing Guidelines

as calling for multiple sentences to be served consecutively if the sentence called

for by the Guidelines is longer than the sentence authorized for any individual

count of conviction. See United States v. Pressley, 345 F.3d 1205, 1213 (11th Cir.

2003) (interpreting § 5G1.2(d) under the then-mandatory Sentencing Guidelines);

see also United States v. Sarras, 575 F.3d 1191, 1209 n.22 (11th Cir. 2009)

(concluding that, under the advisory Sentencing Guidelines, the district court is

still required to properly calculate the guidelines range pursuant to § 5G1.2(d)).

      Here, the record is not sufficiently developed for us to consider whether

Black’s counsel was ineffective for allowing Black to enter into a guilty plea.

Although Black and his counsel briefly testified at the sentencing hearing about

Black’s allegations against his counsel, his counsel did not testify about what he’d

advised Black during the recesses of the change-of-plea hearing. Further, the

district court did not hold a formal evidentiary hearing on this issue, or make any

findings about his counsel’s representation. Thus, the brief statements by Black

and his counsel did not sufficiently develop the record for this claim.


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      Similarly, the record is not sufficiently developed for us to consider whether

Black’s counsel was ineffective for failing to file a sentencing memorandum

addressing the § 3553(a) factors. Because there is no testimony from Black’s

counsel about why he made the decision not to file a sentencing memorandum

addressing the § 3553(a) factors, we can only speculate about counsel’s motives.

      Nor is the record sufficiently developed to address Black’s claim that his

counsel was ineffective for failing to object to his two-level enhancement pursuant

to U.S.S.G. § 2D1.1(b)(1). See id. According to the undisputed facts of the

presentence investigation report (“PSI”) , a BB gun was discovered under the seat

that Black occupied in the truck that also contained marijuana and

methamphetamine. The BB gun was discovered on April 11, 2014, during an

offense that was not charged in the amended superseding information, and Black

objected during his plea colloquy that he did not know his co-defendant was

trafficking drugs on April 11, 2014. Accordingly, it is not clear that the April 11,

2014, conduct was part of the same course of conduct as his counts of conviction,

and that an objection by his counsel to the two-level enhancement would have been

without merit. Moreover, there is no testimony in the record as to why counsel

failed to raise this objection.     Therefore, this claim would be better resolved

through a § 2255 motion. See Patterson, 595 F.3d at 1328.




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      Nevertheless, the record is sufficiently developed to address Black’s claim

that his counsel was ineffective for failing to object that his sentences should not

run consecutively under § 5G1.2. See Franklin, 694 F.3d at 8. As the record

reveals, the district court determined that Black’s guideline range sentence was 108

to 135 months. Because Black’s guideline range sentence was longer than the 60-

month sentence authorized for one individual count of conviction, § 5G1.2 called

for consecutive sentences as to Counts 1 and 2. See Pressley, 345 F.3d at 1213.

Accordingly, Black was not prejudiced by his counsel’s failure to argue that the

counts should run concurrently, pursuant to § 5G1.2, and we reject this particular

ineffectiveness claim. See Strickland, 466 U.S. at 688.

      AFFIRMED.




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