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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-15344
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:17-cr-20324-DMM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

MAXO DUCLER,

                                                         Defendant-Appellant.

                      ________________________

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

                            (March 26, 2020)

Before ROSENBAUM, GRANT, and LUCK, Circuit Judges.

PER CURIAM:
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      Maxo Ducler appeals his convictions after pleading guilty to several drug-

trafficking and firearms offenses. On appeal, Ducler seeks to vacate his plea on two

grounds: he alleges (1) the district court violated Rule 11, Fed. R. Crim. P., by

failing to ensure both that Ducler understood the nature of the drug-conspiracy

charge and that an adequate factual basis supported his plea to that charge; and (2)

the government breached the plea agreement by permitting a state prosecution to

continue after Ducler entered his guilty plea in the federal case. After careful review,

we affirm Ducler’s convictions.

                                           I.

      In June 2017, Ducler was charged by a superseding indictment with several

drug-trafficking and firearms offenses: one count of conspiracy to possess with

intent to distribute a controlled substance, 21 U.S.C. § 846 (Count 1); three counts

of possession with intent to distribute a controlled substance, 21 U.S.C. § 841(a)(1)

(Counts 2, 4, and 7); three counts of possession of a firearm by a convicted felon, 18

U.S.C. § 922(g)(1) (Counts 3, 5, and 8); and two counts of possession of a firearm

in furtherance of a drug-trafficking crime, 18 U.S.C. § 924(c)(1)(A) (Counts 6 and

9). The conspiracy count charged Ducler and a codefendant, Widner Gabriel, with

conspiring to possess with intent to distribute cocaine base (“crack cocaine”),

cocaine, fentanyl, MDMA, and oxycodone.




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      In July 2017, Ducler agreed to plead guilty to Counts 1 through 6 under a

written plea agreement. The parties jointly recommended a total sentence of 17

years in prison (twelve years on Counts 1 through 5, plus a consecutive five-year

sentence on Count 6). The government agreed to dismiss the remaining counts after

sentencing.   In addition, the parties “agreed that, in contemplation of this

agreement,” a related state criminal case against Ducler “will not be prosecuted by

the State Attorney’s Office.”

      The parties also executed a factual proffer stipulating to facts that “would have

been proven beyond a reasonable doubt” at trial. According to the proffer, Ducler

sold drugs or guns or both to a confidential informant on three occasions in February

and March of 2017: (1) on February 28, Ducler sold two ounces of crack cocaine

and one ounce of powder cocaine; (2) on March 8, Ducler sold a loaded gun; and

(3) on March 22, Ducler sold three ounces of crack cocaine and a gun. The proffer

stated that Gabriel was present for the third transaction and “helped DUCLER

unload the firearm before the transaction was completed.”

      A magistrate judge conducted a change-of-plea hearing on July 28, 2017.

Ducler confirmed that he had received a copy of the superseding indictment, that he

had an opportunity to discuss the charges and the plea agreement with his attorney,

that he understood and did not have questions about the terms of the plea agreement,

and that he was pleading guilty because he was, in fact, guilty as charged. After


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going over the maximum penalties Ducler faced, the sentencing guidelines, and the

rights Ducler was giving up by pleading guilty, the magistrate judge addressed the

nature of the charges.

      As to the nature of Count 1, the magistrate judge advised, “Count 1 charges

you with conspiring to possess with the intent to distribute controlled substances,

cocaine base[], which is called crack cocaine, fentanyl, MDMA, and oxycodone, all

of which are listed on either Schedules 1 and 2 of controlled substances.” Ducler

stated that he understood the offenses to which he was pleading guilty. Further,

defense counsel agreed that the factual proffer “sets forth facts which establish the

guilt of this defendant beyond a reasonable doubt.”

      Ducler then pled guilty to Counts 1 through 6, and the magistrate judge found

that he was “aware of the nature of the charges and the consequences of his pleas of

guilty,” which were “supported by an independent basis in fact, containing all of the

material elements of the offenses.” After the hearing, the magistrate judge issued a

report recommending that the district court accept Ducler’s guilty plea as freely and

voluntarily made. The district court adopted the report and recommendation without

objection by Ducler.

      Ducler was sentenced in November 2017 to a total of 17 years in prison, as

the parties had jointly recommended in the plea agreement. At sentencing, the

government attorney referenced the state prosecution against Ducler and stated that


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she would “deal with [the state case] after sentencing, if the Plea Agreement is

upheld.” Ducler raised no issue with respect to the state case at that time. He timely

appealed from the judgment.

       In August 2019, while this appeal was pending, Ducler filed records from the

state case. According to these records, Ducler was charged by information in June

2017. The state submitted a request for temporary custody in March 2018, and

Ducler was transferred in early June 2018 and made his first appearance on June 6,

2018. Nine days later, on June 15, 2018, the state dismissed its case against Ducler,

who was then returned to federal custody.

                                               II.

       Ducler contends that his guilty plea should be vacated because the district

court violated Rule 11 by failing to ensure that he understood the nature of the

conspiracy charge and failing to secure a sufficient factual basis for his plea to that

charge.

       Ducler concedes that, because these arguments were raised for the first time

on appeal, he must demonstrate plain error. 1 See United States v. Rodriguez, 751

F.3d 1244, 1251 (11th Cir. 2014) (“We review for plain error when a defendant . . .



       1
         The government contends that Ducler waived these arguments by failing to raise them in
objections to the magistrate judge’s report and recommendation. See Fed. R. Crim. P. 59(b)(2)
(providing that a party has fourteen days to file objections to a magistrate judge’s recommendation
and that the failure to object “waives a party’s right to review”). We need not decide the waiver
issue because, even assuming the arguments are not waived, Ducler cannot establish plain error.
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fails to object in the district court to a claimed Rule 11 violation, including a claim

that there was an insufficient factual basis for a guilty plea.”). Under plain-error

review, Ducler bears the burden of showing (1) an error (2) that is plain and (3) that

affects substantial rights. Id. To meet the third prong, the defendant “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 (2004). We may “consult the

whole record when considering the effect of any error on substantial rights.” United

States v. Vonn, 535 U.S. 55, 59 (2002).

      “Rule 11 imposes upon a district court the obligation and responsibility to

conduct an inquiry into whether the defendant makes a knowing and voluntary guilty

plea.” United States v. Hernandez-Fraire, 208 F.3d 945, 949 (11th Cir. 2000).

Among other things, Rule 11 mandates that courts inform the defendant of, and

determine that he understand, “the nature of each charge to which the defendant is

pleading.” Fed. R. Crim. P. 11(b)(1)(G). The district court must also “determine

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

the plea’ simply means that there must be evidence from which a court could

reasonably find that the defendant was guilty, and uncontroverted evidence of guilt

is not required.” Rodriguez, 751 F.3d at 1255 (quotation marks omitted).

                                          A.




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      There is no specific way that a district court is required to inform the defendant

of the nature of the charges. United States v. Puentes-Hurtado, 794 F.3d 1278, 1286

(11th Cir. 2015).    The adequacy of the colloquy depends on various factors,

including the complexity of the charges and the defendant’s intelligence and

sophistication. Id. “For simple charges that are generally familiar to a layman, a

reading of the indictment, followed by an opportunity given the defendant to ask

questions about it, will usually suffice.” Id. (quotation marks omitted).

      Here, the district court did not plainly err. This case is materially similar to

Puentes-Hurtado, in which we held that a district court did not plainly err where the

“court asked Mr. Puentes-Hurtado if he understood that Count 1 charged him ‘with

a conspiracy to possess with the intent to distribute cocaine and methamphetamine,’

and Mr. Puentes–Hurtado responded ‘[c]orrect.” Id. Although the court did not go

further and “explain the elements of the narcotics conspiracy charge,” we concluded

that the failure to do so did not affect the defendant’s substantial rights. Id. We

explained that, “[u]nder our precedent, that charge was a ‘simple’ one, and the

district court did not commit plain error when it failed to provide more explanation.”

Id. And we noted that the court did more than simply “ask[] the defendant if he had

read the indictment and understood what he had been charged with.” Id.

      The same reasoning applies in this case. The magistrate judge did more than

simply ask Ducler if he had read the indictment and understood what he had been


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charged with. Rather, similar to the court in Puentes-Hurtado, the magistrate judge

specifically advised Ducler that Count 1 charged him with “conspiring to possess

with the intent to distribute controlled substances, cocaine base[], which is called

crack cocaine, fentanyl, MDMA, and oxycodone,” and Ducler stated that he

understood the charge and had an opportunity to discuss the charges with his

attorney. While the magistrate judge did not go over the elements of that charge, the

drug-conspiracy charge here, like the drug-conspiracy charge in Puentes-Hurtado,

was a “simple” one under our precedent. See id. Accordingly, “the district court did

not commit plain error when it failed to provide more explanation.” Id.

                                         B.

      Next, the factual basis. Ordinarily, “[t]he 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. Lopez, 907 F.2d 1096, 1100 (11th Cir. 1990). The purpose of the factual-

basis requirement is “to protect a defendant who mistakenly believes that his conduct

constitutes the criminal offense to which he is pleading.” Id.

      To support a conviction for conspiracy to possess with intent to distribute a

controlled substance under 21 U.S.C. § 846, “the government must prove beyond a

reasonable doubt that: (1) a conspiracy existed; (2) [the defendant] knew of the

essential objectives of the conspiracy; and (3) [he] knowingly and voluntarily


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participated in the conspiracy.” United States v. Calderon, 127 F.3d 1314, 1326

(11th Cir. 1997) (quotation marks omitted).

      Ducler has not established any error regarding the factual basis affected his

substantial rights. At the change-of-plea hearing, defense counsel agreed that the

facts set forth in the factual proffer establish Ducler’s guilt on the conspiracy charge,

along with the other offenses, beyond a reasonable doubt. In the factual proffer,

Ducler stipulated that his codefendant, Gabriel, was present for a transaction during

which Ducler sold three ounces of crack cocaine and a gun and that Gabriel “helped

[him] unload the firearm before the transaction was completed.”

      Ducler now contends that Gabriel’s “mere presence” during this transaction

is not enough to prove a conspiracy. See, e.g., United States v. Pintado, 715 F.2d

1501, 1504 (11th Cir. 1983) (mere presence at the scene of a crime is not enough to

sustain a conspiracy conviction). But even assuming that’s correct, the district court

was presented with other evidence in the record “from which it could reasonably

find that the defendant was guilty.” Lopez, 907 F.2d at 1100. Specifically, a

government agent testified at sentencing that a search of the residence where Ducler

sold the drugs to the CI revealed both drugs and drug paraphernalia, including a

“large amount of cocaine” and some oxycodone pills and some fentanyl. In addition,

according to the agent, Gabriel was present for the search and later admitted that the

residence was a “stash house” for himself and Ducler and their drug-trafficking


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operation, which involved “importing kilogram[] amounts of cocaine and shipping

out firearms.” The agent advised that Gabriel was prepared to testify against Ducler

in this case.

       Ducler points out that this “this testimony was elicited several months after

[he] changed his plea to guilty.” But this evidence was known to the district court

before it entered judgment on the guilty plea. See Fed. R. Crim. P. 11(b)(3) (“Before

entering judgment on a guilty plea, the court must determine that there is a factual

basis for the plea.” (emphasis added)). And we may “consult the whole record when

considering the effect of any error on substantial rights.” Vonn, 535 U.S. at 59.

Moreover, while Ducler did not stipulate to these additional facts, “[t]here is no

requirement that there be uncontroverted evidence of guilt.” United States v. Owen,

858 F.2d 1514, 1516–17 (11th Cir. 1988). Accordingly, Ducler has made no

showing that any error regarding the factual basis affected his substantial rights. See

Dominguez Benitez, 542 U.S. at 83.

                                         III.

       Ducler next contends that the government breached the terms of the plea

agreement, since, for eleven months after Ducler entered his guilty plea, the State

Attorney’s Office continued prosecuting him on a related state criminal case. We




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review de novo whether the government has breached a plea agreement.2 United

States v. Hunter, 835 F.3d 1320, 1324 (11th Cir. 2016).

       The government is bound by any material promises made to induce the

defendant to plead guilty. United States v. Thomas, 487 F.3d 1358, 1360 (11th Cir.

2007). “Whether the government violated the agreement is judged according to the

defendant’s reasonable understanding of the agreement when he entered the plea.”

Id.

       The Supreme Court has held that “some breaches may be curable . . . for

example, where the prosecution simply forgot its commitment and is willing to

adhere to the agreement.” Puckett v. United States, 556 U.S. 129, 140 (2009)

(emphasis in original). We have allowed the government to cure a breach of a plea

agreement and reasoned that the government’s cure of a breach will obviate the need

for further action from the district court to salvage the plea agreement.                    See

Raulerson v. United States, 901 F.2d 1009, 1013 (11th Cir. 1990); In re Arnett, 804

F.2d 1200, 1204 (11th Cir. 1986) (permitting the government an opportunity to cure

where the defendant suffered no prejudice).




       2
         The government points out that if Ducler’s argument is that the government was in breach
from the moment he entered his guilty plea, then Ducler had an opportunity to raise that issue
before sentencing, in which case our review would be for plain error. See United States v. Davila,
749 F.3d 982, 993 (11th Cir. 2014) (holding that plain-error review applies where the defendant
had “ample occasion” to raise the issue before the district court). In any case, we conclude that
Ducler is not entitled to relief even under de novo review.
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       Here, we need not resolve whether the government breached its promise under

the plea agreement because even if any breach occurred, it was harmless and

promptly cured. 3 In the plea agreement, the parties “agreed that, in contemplation

of this agreement,” a related state criminal case against Ducler “will not be

prosecuted by the State Attorney’s Office.” That state case was pending when

Ducler pled guilty in July 2017. No action was taken in that case—i.e., the state did

not attempt to prosecute the case against him—until March 2018, when the state

requested temporary custody. Ducler was then transferred to state custody in early

June 2018, and the charges were dismissed less than two weeks later. The record

fails to show, and Ducler does not explain, how he was materially harmed by his

brief transfer to state custody while serving his 17-year federal sentence. And once

the state dismissed the charges, he received the benefit of his bargain with the

government, curing any putative breach of the plea agreement. See Raulerson, 901

F.2d at 1013; In re Arnett, 804 F.2d at 1204. Accordingly, we conclude that Ducler

is not entitled to the remedy of withdrawal from the plea agreement.

                                                     IV.




       3
         It’s unclear whether the promise is enforceable, given that the federal government and the
states are separate sovereigns, and the state does not appear to have been a party to the plea
agreement. See United States v. Ballard, 6 F.3d 1502, 1508 (11th Cir. 1993). The government
does not argue that point, however, so we assume that the promise is enforceable.
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      For the reasons stated, we reject Ducler’s attempts to vacate his guilty plea,

and we affirm his convictions.

      AFFIRMED.




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