                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                               No. 07-13018                   NOV 21, 2007
                           Non-Argument Calendar            THOMAS K. KAHN
                         ________________________               CLERK


                      D. C. Docket No. 06-00256-CR-WS

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

JAMES CORLEY,

                                                           Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Alabama
                        _________________________

                             (November 21, 2007)

Before CARNES, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

      James Corley appeals his conviction, pursuant to a plea agreement, for

assaulting a former deputized federal law enforcement officer with a deadly or

dangerous weapon, or with resulting bodily injury, a violation of 18 U.S.C. §§
111(b) and 115(a)(2). For the first time on appeal, Corley argues that the district

court erred during the plea colloquy by failing to advise him of his rights regarding

compelling the attendance of witnesses and presenting evidence, and the court’s

authority to order restitution, which he was ordered to pay in the amount of

$5,097.04.1 After careful review, we affirm.

       Generally, the district court's “factual finding that the requirements of [Rule]

11 were satisfied when it accepted the defendants’ pleas is subject to the clearly

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

Cir .1990). Corley, however, did not raise his Rule 11 argument in the district

court, either by objecting or by moving to withdraw his guilty plea. Cf. United

States v. Moriarty, 429 F.3d 1012, 1018 n. 2 (11th Cir. 2005) (per curiam)

(observing that to preserve a Rule 11 error a defendant should file a motion to

withdraw the guilty plea in district court). Constitutional objections and alleged

violations of Rule 11 that were not raised before the district court are reviewed for

plain error only. See id. at 1018-19. To establish plain error, a defendant must

show (1) error, (2) that is plain, (3) that affects substantial rights, and (4) that

seriously affects the fairness, integrity, or public reputation of judicial proceedings.


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            Based on our own thorough review of the plea colloquy, we address only these argu-
ments, since we find it clear that the district court determined there was a factual basis for the
plea, ascertained that Corley understood the facts necessary to support the guilty plea, and
addressed Corley personally to determine that his plea was voluntary.

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See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.), cert. denied, 545

U.S. 1127 (2005).

      The facts relevant to our analysis are these. On November 28, 2006, Corley

was indicted on one count of assaulting a former deputized federal law

enforcement officer with a deadly or dangerous weapon, or with resulting bodily

injury (Count One), a violation of 18 U.S.C. §§ 111(b) and 115(a)(2), and one

count of attempted murder of a former federal officer (Count Two), a violation of

18 U.S.C. § 1114. He pled guilty to Count One, and the government agreed to

dismiss Count Two.

      During the subsequent plea colloquy, the district court asked Corley if he

had reviewed the indictment with his attorney and if he fully understood the charge

against him, and he responded affirmatively to both questions. He further stated

that he was satisfied with the representation and advice given to him by defense

counsel. The government then informed the court that the maximum penalty was

20 years’ imprisonment, a $1 million fine, and 5 years’ supervised release. Corley

indicated that he understood the maximum penalties, as designated by the

government, and had reviewed the Sentencing Guidelines with his attorney. The

district court then informed Corley that he had a right to plead not guilty and

persist in that plea, and he then would have the opportunity to cross-examine the



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government’s witnesses, be provided with assistance of counsel, and present

witnesses on his own behalf. Corley responded that he understood that he was

giving up the right to go to trial, and all of the associated rights, by pleading guilty.

      The government then summarized the factual basis for the plea as follows.

On October 26, 2006, Corley assaulted a former deputized federal law enforcement

officer, Barry Foley, by beating him in the head and face, and by cutting his head

and face in numerous places with a sharp object. Over ten years earlier, in May

1996, Foley, who at that time was a local police officer in Saraland, Alabama,

assisted United States Postal Inspectors in tracking and ultimately confiscating,

after a controlled delivery to Corley, a package that was shipped through the U.S.

Mails and contained marijuana.        On the evening of October 26, 2006, Corley

recognized Officer Foley in the Feed Store Bar in Axis, Alabama.                    After

confirming Foley’s identity, Corley followed Foley into the bar’s bathroom, where

he assaulted Foley. Thereafter, Corley followed Foley into the parking lot and

attacked him again, including hitting him with a shiny object until Corley lost

consciousness.

      The government stated that it could prove the foregoing facts, among others,

if the case proceeded to trial. Based on these facts, the government said, Corley

had assaulted a formerly deputized federal law enforcement officer with the intent



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to retaliate against the officer based on his past performance of his official duties.

When the district court asked Corley if he agreed that the government could prove

those facts against him, defense counsel replied “[n]o,” stating that there was a

disagreement over whether the government could prove that the former officer was

deputized on the day when he participated in the 1996 sting. Counsel conceded,

however, that the government would be able to prove that Foley was formerly

deputized and had been assisting a formally deputized officer, which satisfied that

element of the crime charged. Counsel also argued that although there was bodily

injury, the government could not prove a weapon was involved in the assault or the

extent of the bodily injury to Foley.

      The court found that although Corley contested the extent of the bodily

injury, Corley “admitted the essential elements of the offense.” Corley then stated

that he was pleading guilty to the charge, and the district court noted that he was

“fully competent and capable of entering an informed plea.” The district court also

found that the plea was knowing, voluntary, and supported by “an independent

basis in fact containing each of the essential elements of the offense.” Finally, the

district court noted that there would be certain factual issues to be determined

during the sentencing hearing. At no point did Corley object based on Rule 11.




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      Thereafter, Corley was sentenced to 151 months’ imprisonment, and ordered

to pay $5,097.04 in restitution. Again, at no point did he assert an objection to the

manner in which the district court had conducted the plea colloquy, nor did he

lodge an objection based on Rule 11 or seek to withdraw his guilty plea. This

appeal followed.

      Corley now argues that the plea colloquy was defective in a number of ways.

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 (2004). “A defendant must thus

satisfy the judgment of the reviewing court, informed by the entire record, that the

probability of a different result is ‘sufficient to undermine confidence in the

outcome’ of the proceeding.” Id. (internal citation omitted).

      Pursuant to Rule 11, before the district court accepts a guilty plea, it must

address the defendant in open court to ensure that he understands various rights

and matters. Fed. R. Crim. P. 11(b)(1) and (2); United States v. Monroe, 353 F.3d

1346, 1350-51 (11th Cir. 2003). The three “core concerns” of Rule 11 are to

ensure that the defendant (1) was not coerced into pleading guilty; (2) understood

the charges against him; and (3) understood the consequences of his guilty plea.



                                         6
Monroe, 353 F.3d at 1354. Among the matters about which the defendant must be

informed are his right “to testify and present evidence, and to compel the

attendance of witnesses,” “the court’s authority to order restitution,” and “the

nature of each charge to which [he] is pleading.” Fed. R. Crim. P. 11(b)(1)(E),

(G), and (K).      Rule 11 further states, though, that “a variance from the

requirements of this rule is harmless error if it does not affect substantial rights.”

Fed. R. Crim. P. 11(h). In fact, this Court generally will uphold a plea colloquy if

it adequately addresses the three core concerns of Rule 11, even if the court failed

to address a specific Rule 11 matter. Monroe 353 F.3d at 1354. Moreover, during

Rule 11 proceedings, “matters of substance, not form, are controlling.” Id. at 1351.

      Although the district court did not expressly inform Corley of his rights in

regard to two of the five errors that he asserts on appeal -- (1) his right to compel

the attendance of witnesses, and (2) the court’s authority to order restitution -- we

readily conclude that the district court’s colloquy adequately informed him of his

rights, consistent with Rule 11. The district court advised Corley of his right to

plead not guilty and go to trial, where he would be able to present witnesses on his

own behalf and cross-examine the government’s witnesses. Although the district

court’s colloquy did not follow the language of Rule 11 exactly, it certainly was

enough to cover the substantive information, that is, “core concerns,” of Rule 11.



                                          7
Moreover, because the government informed Corley about the maximum penalty

associated with the charge, including a $1 million fine, Corley cannot show that his

substantial rights were affected by the court’s omission concerning restitution. See

United States v. Morris, 286 F.3d 1291, 1294 (11th Cir. 2002) (holding that,

although Rule 11 requires a court to explain a defendant’s liability for both fines

and restitution, “failure to do so does not impact a defendant’s substantial rights

where he was warned of a potential fine larger than the actual amount of restitution

ordered.”).

      On this record, Corley has not shown error, let alone plain error, based on

the plea colloquy. Accordingly, we affirm.

      AFFIRMED.




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