                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                          DECEMBER 7, 2007
                             No. 06-13833                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                 D. C. Docket No. 05-00232-CR-T-27-TBM

UNITED STATES OF AMERICA,


                                                     Plaintiff-Appellee,

                                  versus

JOSE AGUSTIN BENITEZ,

                                                     Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                           (December 7, 2007)

Before TJOFLAT, BIRCH, and BLACK, Circuit Judges.

PER CURIAM:
       Jose Agustin Benitez appeals his conviction, entered after a guilty plea, of

Count Three of the indictment against him, which charged that he and his brother

possessed a firearm during a drug trafficking offense in violation of 18 U.S.C. §

924(c). On appeal, Benitez argues that the district court violated Federal Rule of

Criminal Procedure 11 (“Rule 11") by failing to ensure that he adequately

understood the nature of the charge contained in Count Three. Benitez argues that

his guilty plea was not knowing and voluntary because the district court did not

explain to him how he could be found guilty of this charge under a Pinkerton 1

theory of liability, through which Benitez, as a co-conspirator, could be convicted

of possessing a firearm if it was reasonably foreseeable that the firearm would be

present during the drug trafficking offense. After a thorough review of the record

and the parties’ briefs, we AFFIRM.

                                   I. INTRODUCTION

       A federal grand jury indicted Benitez for: (1) distribution of

methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(viii), and 18

U.S.C. § 2 (Count One); (2) possession with intent to distribute 50 grams or more

of methamphetamine and 500 grams or more of a mixture or substance containing


       1
          See Pinkerton v. United States, 328 U.S. 640, 645-48, 66 S.Ct. 1180, 1183-84 (1946) (a
party to a conspiracy may be held responsible for substantive offenses committed by a
co-conspirator in furtherance of the conspiracy, even when he did not participate in the
substantive offenses or have any knowledge of them).

                                               2
methamphetamine, in violation of Title 18, U.S.C. §§ 841(a)(1), (b)(1)(A)(viii)

(Count Two); and (3) possession of a firearm during a drug trafficking crime, in

violation of 18 U.S.C. § 924(c) (Count Three). Without the benefit of a written

plea agreement, Benitez entered a plea of guilty as to all three counts.

      At the plea hearing, Benitez testified that he had only a first-grade education,

his native language was Spanish, and he understood “very little” English. R3 at 7.

Counsel for Benitez withdrew a previous motion to withdraw from the case, and

the district court established that Benitez was satisfied with his counsel’s

representation. When the district court inquired as to whether Benitez wished

anything more of his attorney, Benitez stated, “Well, I just told him that I wanted

the pistol business to be dismissed, but there’s no way of doing that so . . . I spoke

to him but nothing could be done about it, so it’s okay.” Id. at 9. The following

brief exchange took place at this point:

             COURT:   Do you need any additional time before I go
                      forward?
             BENITEZ: Well, it depends on [my attorney], anyway.
                      I want to plead guilty.
             COURT:   Well, that’s your right, your decision.
             BENITEZ: Well, I do want to plead guilty.


Id. at 9-10. According to the record, Benitez had consulted with his attorney on

five or six occasions, where they discussed the case, the indictment, and the



                                           3
elements of the offenses, evaluated the evidence, considered the Pinkerton theory

of liability, and talked about his decision to plead guilty. The district court

confirmed that an interpreter had been present for these meetings.

      The district court then instructed Benitez about the sentencing process. At

one point during this discussion, the district court asked Benitez whether he

understood that the Probation Office would issue a presentence investigation report

if he pled guilty, to which Benitez responded, “Okay. I will plead guilty.” Id. at

16. The district court then instructed Benitez on the maximum and minimum

sentences for Counts One and Two. The district court proceeded to instruct

Benitez with respect to Count Three, and the following exchange occurred:

             COURT:   All right. As to Count Three of the
                      indictment, I am advised and I now instruct
                      you that you face a minimum mandatory
                      sentence of five years up to life
                      imprisonment, a $250,000 fine, three years
                      of supervised release, and $100 special
                      assessment. Do you understand that?
             BENITEZ: Yes, I understand.
             COURT:   This is the gun charge; do you understand?
             BENITEZ: Yes. But I wanted to know, are you going to
                      charge me with a pistol? My brother has
                      already pled guilty.
             COURT:   Count Three, as I indicated, charges that you
                      and your brother together knowingly
                      possessed a .45 caliber Colt handgun in
                      furtherance of a drug trafficking offense.




                                           4
Id. at 23-24. Counsel for Benitez then explained to the court that Benitez was

pleading guilty to Count Three under the Pinkerton theory of liability. As defense

counsel explained, under this theory, Benitez could be found guilty under Section

924(c) for possession of a firearm during the commission of a drug trafficking

offense, even though he did not actually possess the firearm or have any actual

knowledge that a firearm was present.

      At the request of the district court, the government set out the underlying

factual basis for the indictment. On 31 May 2005, Benitez sold approximately one

pound of methamphetamine to an undercover officer. A few days later, he

arranged to sell the officer three pounds of higher quality methamphetamine.

Benitez arrived at the meeting location at the pre-arranged time, accompanied by

his brother, Jose Luis Benitez. After Benitez showed the undercover officer the

methamphetamine, several officers approached the vehicle, at which point Jose

Luis Benitez reached down between the center console and the passenger seat

where he was sitting. The brothers were arrested, and the authorities discovered a

loaded handgun in the vehicle, between the center console and the passenger seat.

In post-arrest statements, Benitez admitted to selling and delivering the

methamphetamine, but denied knowing that the gun was in the vehicle.

      The district court then expressed skepticism about accepting a guilty plea to



                                          5
Count Three since Benitez denied knowledge of the firearm. Both the government

and counsel for Benitez explained to the district court their understanding of

Pinkerton liability, and stated that Benitez could plead guilty to Count Three under

such a theory even though he did not actually possess the firearm or know it was

there. During this discussion, Benitez’s attorney explained that he wished to use

the Pinkerton theory in this case because, by denying actual possession of the

firearm, Benitez potentially could receive a safety-valve reduction to his sentence.

The government agreed not to object to a safety-valve reduction and also agreed

with defense counsel's explanation and application of the Pinkerton theory.

      The district court then continued to instruct Benitez on potential sentences

and the consequences of his plea, and Benitez informed the court that he

understood everything that was being told to him. The court then asked whether

Benitez understood that he had a right to a trial by jury if he decided not to plead

guilty, to which Benitez responded, “No. I’d rather plead guilty.” Id. at 38. The

district court continued to explain the rights that Benitez would be forfeiting by

entering a guilty plea and asked him whether he understood, to which Benitez

replied, “Okay. I’m not going to trial.” Id. at 39. In response to the district court's

continuing explanation as to the consequences of the plea, Benitez stated, “Well, I

don’t know anything – I don't know anything about laws. Only my lawyer can tell



                                           6
me something.” Id. at 40. Benitez then asked permission to ask his attorney a

question, which was granted, and he then said, “Yes, I’ll plead guilty.” Id. After

reciting the elements of the first two counts, the district court then recited the

elements of Count Three as follows: “That on or about April 4th, you knowingly

possessed a .45 caliber Colt handgun in furtherance of the drug trafficking offense

described in Count Two. Do you understand that?” Id. at 44. Benitez replied,

“Yes. I understand.” Id.

      After the government recited the factual basis underlying all three counts,

Benitez admitted that the government’s testimony was accurate, and counsel for

Benitez suggested that the facts likely were sufficient to establish liability under

Pinkerton. In order to clarify Benitez’s knowledge with respect to the gun, the

district court engaged in the following colloquy:

             COURT:        Mr. Benitez, as to Count three, the gun
                           charge, did you know the gun was in the
                           car?
             BENITEZ:      No.
             COURT:        But you understood, did you not, that your
                           brother may have placed it there?
             BENITEZ:      Well, he came there from work and he said
                           that he carried it with him, but he didn't tell
                           me anything. He told me nothing.
             COURT:        Why was he with you that day on April 4th?
             BENITEZ:      I invited him to the store.
             COURT:        All right. For what purpose?
             BENITEZ:      I told him I was going to go buy some beer.
             COURT:        Well, did he know that you were going to

                                            7
                            make a sale to the undercover detective?
                BENITEZ:    He realized it then when he saw it there. He
                            realized it when he saw it.
                COURT:      Does your brother normally carry a gun?
                BENITEZ:    He just had one.
                COURT:      I understand that. But does he carry a gun
                            with him on a regular basis?
                BENITEZ:    Well, he didn't tell me anything.
                COURT:      That's not what I'm asking. Does your
                            brother normally carry a gun with him?
                BENITEZ:    Yes. He had it on him.


Id. at 53-54.

      The district court then proceeded to take Benitez's formal pleas as to all three

counts. After Benitez entered an unequivocal guilty plea as to the first two counts,

the following exchange occurred:

                COURT:   As to Count Three charging that you,
                         together with your brother, knowingly
                         possessed a .45 caliber Colt handgun in
                         furtherance of a drug trafficking offense,
                         how do you plead; guilty or not guilty?
                BENITEZ: Well, the she[e]r truth is I don't know.
                         Regardless – well, one could see if they
                         could take away the gun from me. But I do
                         plead guilty to all of it. Everything.
                COURT:   Well, Count Three has not been taken away.
                         If you plead guilty, you will be punished by
                         law to a sentence of at least five years
                         consecutive to any sentence imposed on
                         Counts One and Two. Do you plead guilty
                         or not guilty to Count Three?
                BENITEZ: As for the gun?
                COURT:   Yes, sir.

                                           8
             BENITEZ: No. I'm not going to plead guilty.

                                  [Discussion was held off the record.]

             BENITEZ: Yes.
             COURT:   Yes, what?
             BENITEZ: Yes. I do plead guilty.
             COURT:   Do you have any question about that? I
                      know you've conferred with your lawyer.
             BENITEZ: No, no, not – that's it.


Id. at 55-56. The district court then found that Benitez knowingly and voluntarily

entered a guilty plea as to all three counts, that he understood the essential

elements of the offenses, and that his plea was factually supported. The district

court also remarked that:

             [W]ith respect to Count Three, there has been some
             discussion here this morning concerning this defendant's
             criminal culpability. He has pled guilty without
             equivocation. There is an independent basis in fact
             supporting this charge . . . There is a basis in fact for the
             jury to find constructive possession, as well as possession
             as discussed by counsel under a Pinkerton or conspiracy
             type presentation.


Id. at 57. The district court sentenced Benitez to a term of imprisonment of 96

months for Counts One and Two to run concurrently, and a term of 60 months for

Count Three to run consecutively to the sentences for Counts One and Two.

Benitez raised no Rule 11 objection during the guilty plea hearing. In this appeal,



                                           9
Benitez requests that we vacate his guilty plea to allow him the opportunity to

plead anew because the district court did not explain in detail how Benitez could be

found guilty of Count Three under a Pinkerton theory of liability.

                                   II. DISCUSSION

       When a defendant raises a Rule 11 objection for the first time on appeal, we

review that objection for plain error. United States v. Vonn, 535 U.S. 55, 59, 122

S.Ct. 1043, 1046 (2002); United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir.

2003). Under plain error review, the defendant has the burden to show that there is

an: (1) error; (2) that is plain; (3) that affects substantial rights. United States v.

Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776 (1993). If these three elements are

met, the court may exercise its discretion to correct the error if it “seriously

affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id.

(citation omitted). “[A] defendant who seeks reversal of his conviction after a

guilty plea, on the ground that the district court committed plain error under Rule

11, 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).

       “The district court's implicit factual finding that the requirements of Rule 11

were satisfied when it accepted the defendant[’s] pleas is subject to the clearly



                                            10
erroneous standard of review.” United States v. Lopez, 907 F.2d 1096, 1099 (11th

Cir. 1990). To assess the effect of an alleged Rule 11 error, the reviewing court

must consider the entire record, not just the transcript of the plea hearing. Vonn,

535 U.S. at 74-75, 122 S.Ct. at 1055. After reviewing the record as a whole, we

will affirm the district court, “if the record provides a basis for the court’s finding

that the defendant understood what he was admitting and that what he was

admitting constituted the crime charged.” Lopez, 907 F.2d at 1099. In

determining whether there is a factual basis for a plea under Rule 11, “[t]he judge

must determine that the conduct which the defendant admits constitutes the offense

charged in the indictment or information or an offense included therein to which

the defendant has pleaded guilty.” McCarthy v. United States, 394 U.S. 459, 467,

89 S.Ct. 1166, 1171 (1969) (citation omitted). The standard for evaluating

challenges to the factual basis for a guilty plea is whether the district court was

presented with evidence from which it could reasonably find that the defendant

was guilty. United States v. Owen, 858 F.2d 1514, 1516-17 (11th Cir. 1988) (per

curiam). In advising a defendant of the nature of the charges against him, there is

no requirement in Rule 11(c) “that a district court must list each element of the

offense seriatim.” United States v. Wiggins, 131 F.3d 1440, 1442-43 (11th Cir.

1997) (per curiam).



                                           11
       In this case, the record as a whole reveals that Benitez knowingly and

voluntarily entered a plea of guilty to Count Three. During the plea colloquy, the

district court carefully reviewed the charge contained in Count Three, the elements

of that charge, the factual basis for Benitez’s guilt under Count Three, the rights

Benitez would waive if he pleaded guilty, and the potential sentences he could

receive for all counts in the indictment. At the plea hearing, and throughout the

history of the case, Benitez was adequately represented by counsel. Benitez

testified at the plea hearing that he had several opportunities to discuss his case in

detail with his attorney, and he repeatedly expressed his desire to plead guilty to

all of the charges and not to go to trial.2

       With respect to the Pinkerton theory, the district court questioned Benitez

about whether his brother knew that they would be making a sale of drugs to the

undercover officer and whether Benitez knew that his brother “normally carr[ied] a

gun with him.” R3 at 54. Benitez understood those questions and answered both

of them in the affirmative. We find that Benitez understood what he was

admitting, and, as we explain, what he admitted constituted the crime charged in


       2
          We recognize that, during the course of the plea hearing, Benitez also stated several
times that he did not want to plead guilty to Count Three and that he wanted the gun possession
charge to be dismissed. However, after further consultation with his attorney, he informed the
district court that he did not want to go to trial and wanted to plead guilty to all counts of the
indictment, including Count Three. The district court asked Benitez if he any questions or
objections, and Benitez replied that he had none. R3 at 55-56.

                                                12
Count Three. See Lopez, 907 F.2d at 1099. Further, the Pinkerton theory is not an

essential element of the offense charged in Count Three, it is only a theory under

which a court may find criminal liability. Cf. United States v. Camacho, 233 F.3d

1308, 1315 (11th Cir. 2000) (finding that “aiding and abetting is merely a theory

upon which liability may be based,” not an essential element of the charge of

possession with intent to distribute cocaine which must be explained to a

defendant). The district court did not reversibly err in its explanation of Count

Three to Benitez, or in its implicit finding that Benitez understood the charge to

which he was pleading guilty. Therefore, we find Benitez's plea was voluntary and

knowing.

      Next, we find that there was a sufficient factual basis to find Benitez guilty

under Count III. Benitez and his brother were arrested in an automobile while

making a controlled sale of methamphetamine to an undercover officer, which was

the second such sale within several days. A loaded handgun was found between

the center console and the passenger seat, in close proximity to Benitez, who was

in the driver’s seat. Although Benitez consistently denied having actual knowledge

that the gun was present at the time, he testified at the plea hearing that he was

aware that his brother sometimes carried a handgun. Based upon our review of the

record, we find that the district court was presented with evidence on which it



                                          13
could reasonably find that Benitez was guilty. See Pinkerton v. United States, 328

U.S. 640, 645-48, 66 S.Ct. 1180, 1183-84 (1946). Even if Benitez was not actually

aware that his brother possessed the handgun during the controlled sale, there is

ample evidence to support the district court’s conclusion that it was reasonably

foreseeable to Benitez that his brother would possess a handgun during the sale of

drugs.

         Finally, we find that Benitez failed to establish that there is a reasonable

probability he would not have pled guilty if the district court had thoroughly

explained Pinkerton liability during the plea colloquy. In Dominguez Benitez, the

Supreme Court recognized that when the record reveals strong evidence of a

defendant’s guilt, as it does here, involving controlled sales of drugs to an

undercover officer, a handgun found in close proximity to Benitez, and testimony

that Benitez knew that his brother sometimes carried a handgun,

               one can fairly ask a defendant seeking to withdraw his
               plea what he might ever have thought he could gain by
               going to trial. The point of the question is not to
               second-guess a defendant’s actual decision; if it is
               reasonably probable he would have gone to trial absent
               the error, it is no matter that the choice may have been
               foolish. The point, rather, is to enquire whether the
               omitted warning would have made the difference
               required by the standard of reasonable probability.

Dominguez Benitez, 542 U.S. at 85, 124 S.Ct at 2341.



                                             14
      In this case, we conclude that the district court’s choice not to parse the

details of Pinkerton liability during the plea colloquy did not affect Benitez’s

decision to plead guilty. The evidence against Benitez was strong, and, as defense

counsel noted at the plea hearing, Benitez’s plea afforded him the significant

benefit of a two-level safety-valve sentencing reduction and a three-level reduction

for acceptance of responsibility and timely notification of intent to plead guilty.

Although Benitez now claims that he would have pled not guilty if the district

court had explained Pinkerton liability to him in detail, after considering the

strength of the evidence in the government’s case and the benefits Benitez received

through his guilty plea, we are not persuaded that Benitez would have chosen to go

to trial instead of pleading guilty. As we similarly found in United States v.

DePace, 120 F.3d 233, 238 (11th Cir. 1997), even though it “would have been

preferable” to explain the Pinkerton theory in greater detail, “we cannot find that

[the district court’s] omission undermined [Benitez’s] understanding to a degree

that would invalidate the . . . acceptance of the guilty plea.”

      We find that Benitez knowingly and voluntarily entered a plea of guilty to

Count Three, and the district court was presented with a sufficient factual basis for

finding Benitez guilty of that count. Further, we conclude that Benitez failed to

carry his burden to establish that his decision to plead guilty was affected by the



                                           15
district court’s [decision not] to explain Pinkerton liability. Therefore, we find no

error that was plain and that affected Benitez’s substantial rights.

                                III. CONCLUSION

      Benitez appealed his conviction for possession of a firearm during a drug

trafficking offense, under 18 U.S.C. § 924(c). Benitez argued that the district court

violated Federal Rule of Criminal Procedure 11 by failing to ensure that Benitez

adequately understood the nature of Count Three of the indictment, which charged

that Benitez knowingly possessed a handgun in furtherance of a drug offense.

Benitez argued that his guilty plea was not knowing and voluntary because the

district court did not explain to Benitez how he could be found guilty of Count

Three under a Pinkerton theory of liability, through which Benitez could be

charged with possession of a firearm if the presence of the firearm during the drug

trafficking offense was reasonably foreseeable. We find that Benitez entered a

knowing and voluntary guilty plea for which there is a sufficient factual basis

under Pinkerton, the district court was not required to walk Benitez through the

Pinkerton theory during the plea hearing, and Benitez did not establish a

reasonable probability that he would not have pled guilty but for the district court’s

choice not to explain that theory. Therefore, Benitez’s conviction is AFFIRMED.




                                           16
