           Case: 14-10750   Date Filed: 06/29/2015   Page: 1 of 5


                                                        [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-10750
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 1:13-cr-00015-WLS-TQL-9



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

versus

RAYMOND ANTHONY BROWN,
a.k.a. "Raymond C",

                                                         Defendant-Appellant.

                      ________________________

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

                             (June 29, 2015)

Before MARCUS, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Raymond Brown challenges his conviction by guilty plea for one count of

conspiracy to possess with intent to distribute cocaine and cocaine base, in

violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii) and (iii), and 846. Brown

argues for the first time on appeal that, at his change-of-plea hearing, the district

court committed plain error by failing to advise him of the lower mandatory-

minimum sentence applicable to a conspiracy to possess marijuana, which was

alternatively charged in the indictment. He maintains that the court’s failure to so

advise him created “confusion in [his] mind,” and rendered him unable to make a

knowing and intelligent decision whether or not to plead guilty. He also asserts

that, but for the error, he would not have entered the plea. The Government, on the

other hand, contends that pursuant to his plea agreement, Brown pled guilty to a

conspiracy to possess with intent to distribute cocaine and cocaine base and that

the court adequately informed him of the mandatory-minimum penalty for that

offense.

      When a defendant fails to object to an alleged Rule 11 error in the district

court, we apply the plain error standard of review. United States v. Moriarty,

429 F.3d 1012, 1019 (11th Cir. 2005). To prevail under this standard, the

defendant must show (1) that there was an error, (2) that it was plain, and (3) that it

affected his substantial rights. Id. at 1019. Even if all three requirements are met,

we may exercise our discretion to recognize a forfeited error only if the error


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seriously affected the fairness, integrity, or public reputation of the judicial

proceedings. Id.

      Before accepting a guilty plea, the district court must inform the defendant

of, and ensure that he understands, “the nature of each charge to which he is

pleading,” “any maximum possible penalty,” and “any mandatory minimum

penalty.” Fed.R.Crim.P. 11(b)(1)(G)-(I). In addition, generally, the plea colloquy

must satisfy the “core principles” of 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 consequences of his plea. Moriarty, 429 F.3d

at 1019 (quotation omitted).

      “[I]t is fundamental error for a court to enter a judgment of conviction

against a defendant who has not been charged, tried, or found guilty of the crime

recited in the judgment.” United States v. James, 642 F.3d 1333, 1343

(11th Cir. 2011) (quotation omitted). We may, sua sponte, raise the issue of a

clerical error in the judgment and remand with instructions that the district court

correct it. United States v. Reeves, 742 F.3d 487, 507 n.12 (11th Cir. 2014).

      Here, the Government is correct that Brown pled guilty to a conspiracy to

possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A)(ii) and (iii), and 846. While the indictment, in a single

count, charged Brown with a conspiracy (1) to possess “cocaine in excess of


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five (5) kilograms and cocaine base in excess of 280 grams with the intent to

distribute the same” and (2) to possess “marijuana in excess of 100 kilograms,”

Brown’s plea agreement provided that he would plead guilty to a “conspiracy to

possess with intent to distribute cocaine in excess of 5 kilograms [], and cocaine

base in excess of 280 grams.” In the same sentence, the plea agreement referred to

the statutory penalty provisions for violations involving cocaine and cocaine base,

only. See 21 U.S.C. § 841(b)(1)(A)(ii) and (iii). The plea agreement also

contained a drug-quantity stipulation that satisfied § 841(b)(1)(A)(iii), namely, that

Brown was accountable for at least 280 grams but no more than 640 grams of

cocaine base. The agreement did not stipulate an amount of marijuana.

      In line with the agreement, the Government announced at the change-of-plea

hearing, over no objection by Brown or his counsel, that Brown was pleading

guilty to a conspiracy to possess with intent to distribute cocaine and cocaine base,

and it referenced the statutory penalty provisions for offenses involving those

substances, only. After the court read the charge in the indictment, it specifically

advised Brown that his plea would subject him a ten-year mandatory minimum

prison sentence, and Brown indicated that he understood. See 21 U.S.C.

§ 841(b)(1)(A)(ii) and (iii). And at sentencing, Brown requested the

mandatory-minimum ten-year sentence. Thus, the record reflects that the court

ensured that Brown was aware of and understood the minimum statutory penalty


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for the charge to which he was pleading guilty. See Fed.R.Crim.P. 11(b)(1)(I);

Moriarty, 429 F.3d at 1019. Brown has shown no error, let alone plain error, and

his conviction is therefore affirmed.

      However, because the written judgment incorrectly states that Brown was

convicted of a conspiracy to possess with intent to distribute marijuana, as well as

cocaine and cocaine base, and because it includes a citation to 21 U.S.C.

§ 841(b)(1)(B)(vii), the penalty provision for possession with intent to distribute

100 kilograms or more of marijuana, we remand the case to the district court for

the limited purpose of correcting the judgment.

      AFFIRMED IN PART, REMANDED IN PART.




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