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                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 18-14600
                             Non-Argument Calendar
                           ________________________

                     D.C. Docket No. 1:16-cr-20878-CMA-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

RICKY NELSON BYNUM,

                                                              Defendant-Appellant.

                           ________________________

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

                                (August 19, 2019)

Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:

      Ricky Nelson Bynum appeals his convictions for possession with intent to

distribute 28 grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1),

and knowingly possessing a firearm in furtherance of a drug-trafficking crime, in
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violation of 18 U.S.C. § 924(c)(1)(A). On appeal, he argues that the district court’s

plea colloquy was constitutionally defective and violated Fed. R. Crim. P. 11

(“Rule 11”) because he was not adequately advised of the charges against him and

the consequences of his guilty plea, and there was an insufficient factual basis to

support his guilty plea. He also argues that his counsel provided ineffective

assistance throughout his criminal proceedings. For the reasons set forth below,

we affirm Bynum’s convictions and decline to address his ineffective assistance

claim in this direct appeal.

           I.       FACTUAL AND PROCEDURAL BACKGROUND

      A.        Information, Plea Agreement, and Factual Basis

      Bynum was charged by information with one count of possession with intent

to distribute 28 grams or more of a mixture and substance containing a detectable

amount of cocaine base and a detectable amount of cocaine in violation of 21

U.S.C. § 841(a)(1), (b)(1)(B), (C) and one count of knowingly carrying a firearm

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

Bynum agreed to plead guilty to both counts pursuant to a written plea agreement

and agreed to waive his right to prosecution by indictment. The plea agreement

provided in relevant part that: (1) as to count one, the sentencing court “must

impose a statutory minimum term of imprisonment of five years, and may impose

a statutory maximum term of imprisonment of up to forty years” and (2) as to


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count two, the sentencing court “must impose a statutory minimum term of five

years of imprisonment and may impose a statutory maximum term of

imprisonment up to life, which is to run consecutive to any other term of

imprisonment.” The plea agreement also reflected that the parties agreed to jointly

recommend that the quantity of cocaine base involved in the offense is 228 grams.

      Bynum and his counsel also signed a factual proffer that described law

enforcement’s search of Bynum’s home which uncovered crack cocaine,

distribution paraphernalia, firearms, and U.S. currency. Law enforcement found

the following items in Bynum’s bedroom: his wallet and crack cocaine lying on his

nightstand, powder cocaine in his dresser, a loaded .40 caliber handgun underneath

his pillow, a loaded .38 revolver in his closet, and a rifle at the foot of his bed.

More crack and powder cocaine, narcotics paraphernalia, and U.S. currency were

discovered in a second bedroom. In a post-Miranda1 interview, Bynum stated that

all of the firearms, narcotics, and money found in his residence were his and that

he owned the firearms for protection. The total weight of cocaine base discovered

in Bynum’s residence was 228 grams. The factual basis finally stated: “Defendant

possessed the narcotics with intent to distribute them. Defendant further possessed

the firearms discovered in his residence in furtherance of distributing narcotics.”

      B.       Change of Plea Hearing


      1
          Miranda v. Arizona, 384 U.S. 436 (1966).
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      At Bynum’s change of plea hearing, he was placed under oath and answered

the court’s questions. Bynum stated that he had a high-school education, had not

been treated for mental illness or drug addiction, had fully discussed the

information and his case with his attorney, and that he was satisfied with the advice

he received from his attorney. He stated that he understood the two charges that he

was pleading guilty to.

      The sentencing court asked the assistant United States Attorney to set forth

the elements of the offenses Bynum was pleading guilty to. With respect to count

two, she stated:

              There are three elements of the second offense, the first of
      which is that the Defendant committed the drug trafficking offense as
      charged; second, that the Defendant knowingly possessed a firearm;
      and, third, that the Defendant possessed the firearm during in relation
      to the drug trafficking crime that was charged.

Bynum’s counsel agreed that this was an accurate statement of the elements.

Bynum’s counsel stated to the sentencing court the steps he had taken to

familiarize Bynum with the charges, the Government’s evidence, his right to

proceed to trial, and the consequences of a guilty plea. Mr. Bynum agreed with

counsel’s descriptions of such steps.

      Mr. Bynum stated that he had read the plea agreement and discussed it fully

with his counsel. The sentencing court next reviewed the plea agreement,

explaining that it could impose an above or below guidelines sentence up to the


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statutory maximum. As to count one, the court explained that it was required to

impose a minimum term of five years’ imprisonment and could impose a statutory

maximum term of forty years’ imprisonment. As to count two, the court explained

that it was required to impose a minimum term of five years’ imprisonment, and it

could impose a sentence up to life, “to run consecutive to any other term of

imprisonment.” The court asked Bynum if he understood the maximum possible

sentence and he responded in the affirmative. Bynum also confirmed, among other

things, that he agreed to jointly recommend that 228 grams of cocaine base was

involved in his offense and understood the rights that he was giving up by pleading

guilty. He confirmed that he was pleading guilty because he was, in fact, guilty.

      Next, the court reviewed the factual proffer with Bynum, who confirmed

that he had read it and discussed it with counsel prior to signing it. He confirmed

that, had the case proceeded to trial, the Government would have proven the facts

contained in the factual proffer—which the court summarized on the record—

beyond a reasonable doubt. The court accepted Bynum’s plea and adjudicated him

guilty.

      C.     First Sentencing Hearing

      Prior to Bynum’s sentencing hearing, United States Probation prepared a

Presentence Investigation Report (“PSR”), which, among other things, stated that,

as to count one, Bynum was subject to a statutory minimum term of imprisonment


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of five years and maximum of forty years and, as to count two, Bynum faced a

statutory minimum term of imprisonment of five years that “shall run consecutive

to any other term of imprisonment.” 2 As to applicable Guideline provisions, the

PSR stated that the Guideline imprisonment range was 57 to 71 months and that

count two requires 60 months imprisonment, to run consecutively to any other

term. This Guideline calculation did not take into account that Bynum was subject

to a statutory mandatory minimum—which was higher than the stated Guideline

range—as to count one.

       Bynum did not object to the PSR but, through counsel, filed a motion for

downward departure. This motion correctly recounted the offenses Bynum had

pleaded guilty to, acknowledged that he was not eligible for safety valve relief

pursuant to U.S.S.G. § 5C1.2(a)(2), and requested a downward departure on count

one.

       At his sentencing hearing, Bynum confirmed that he had reviewed the PSR

with counsel. The Government requested a 57-month sentence, at the low end of

the Guideline range, as to count one “in addition to the” 60-month sentence as to

count 2. The Government stated that it was “unfortunate” that the safety valve

could not apply in this case because “Mr. Bynum’s son was selling quite a lot of



       2
       The PSR contained a scrivener’s error that referenced “Count Three” instead of “Count
Two” but this error was corrected in the PSR
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narcotics, and that’s how we actually came across Mr. Bynum. He was using Mr.

Bynum’s home to sell drugs . . . .” Defense counsel repeated its request for a

downward variance, asking that the court grant a downward variance to one day on

count one followed by the consecutive five-year sentence as to count 2.

      The sentencing court asked the Government to clarify its earlier statement

regarding Bynum’s son’s participation in drug activities, because the PSR reflected

that Bynum admitted that all of the drugs within the residence belonged to him.

The Government responded that Bynum was working with his son to traffic

narcotics, but was doing a smaller portion of the selling compared to his son. The

Government stated that, as to Bynum’s admission that all of the drugs were his, it

thought “to some extent he was protecting his son, which is sort of

understandable.” It stated that it was somewhat difficult to parse out which drugs

belong to who and that it thought Bynum’s admission “is more of a fatherly

statement than necessarily an accurate reflection of . . . whose those drugs actually

were.” The sentencing court granted Bynum’s motion for a downward departure in

part and sentenced him to a term of 84 months total, compromised of 24 months as

to count one and 60 months, to run consecutively to count one, as to count two.

      D.     Second Sentencing Hearing

      A week later, Bynum returned for resentencing. The sentencing court stated

that, after Bynum’s first sentencing, it received a memorandum from United States


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Probation stating that Bynum must be resentenced because count one was subject

to a mandatory minimum sentence that the sentencing court had no discretion to

vary downward from. Bynum’s counsel stated that he had explained the law to his

client, including that if the current sentence remained in place it would be

overturned on appeal. Bynum’s counsel also stated that he had explained to his

client that he could ask to have his plea set aside based upon his prior belief that he

would be sentenced to a shorter term. Counsel stated that he was “quite sure that if

[he] asked the Court to set [Bynum’s sentence] aside, that this Court would do so,”

to which the sentencing court responded, “correct.” Bynum’s counsel then

indicated that, despite being advised of his ability to request that his plea be

withdrawn, Bynum did not want to proceed to trial.

      Bynum then addressed the sentencing court and said “this may be a ten-year

term, right? I may not have ten years to give you because I got congestive heart

failure, you know. And I’m just asking on the mercy of the Court, you know, if

you could do maybe a split or something?” The court then explained that it did not

have discretion to do so and that she must impose the mandatory minimums. The

Government then recounted the sentencing benefits that Bynum received by

pleading guilty—namely that the Government agreed to charge a five-year instead

of a ten-year mandatory minimum as to count one. The Government also




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reiterated that it has always been the parties’ agreement that there would be a five-

year mandatory minimum as to count one.

      The sentencing court then announced that Bynum was sentenced to a term of

imprisonment of 120 months—60 months as to count one and a consecutive term

of 60 months as to count two. The sentencing court informed Bynum that he had

fourteen days after entry of judgment to file notice of appeal.

      E.     First § 2255 Proceeding

      A few months later, Bynum filed a pro se 28 U.S.C. § 2255 motion,

asserting eight ineffective assistance of counsel claims, including a claim that

counsel had failed to file an appeal despite being instructed to do so. A magistrate

judge determined that the failure to file appeal claim warranted an evidentiary

hearing and appointed a public defender to represent Bynum. Bynum’s § 2255

counsel and the magistrate judge both made clear that the scope of this hearing was

limited to the issue of the notice of appeal. Bynum testified that—among other

things regarding his understanding of the plea, factual proffer, and sentencing

proceedings—he instructed his sentencing counsel to file a notice of appeal but he

did not do so.

      The magistrate judge issued a report and recommendation recommending

that Bynum’s § 2255 motion be granted solely as to the failure to file a notice of

appeal claim and that Bynum be permitted to file an out-of-time appeal. It was


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recommended that the remaining claims be dismissed without prejudice. The

district court adopted the report and recommendation. The sentencing court then

reinstated the judgement reflecting Bynum’s 120-month sentence, which Bynum

presently appeals from.

                             II.     PLEA COLLOQUY

      A.     Legal Standards

      Bynum contends that his guilty plea should be vacated because he did not

understand the nature of his charges or the consequences of his guilty plea. When

a defendant fails to raise a constitutional or Rule 11 violation before the district

court, we review only for plain error. United States v. Moriarty, 429 F.3d 1012,

1018–19 (11th Cir. 2005) (per curium). To establish plain error, a defendant must

show that “there is (1) error, (2) that is plain, and (3) that affects substantial

rights.” Id. at 1019. If these conditions are met, we may then exercise our

discretion to notice a forfeited error, “but only if the error seriously affect[s] the

fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation

marks omitted) (alterations in original). “Under plain error review, the defendant

bears the burden of persuasion with respect to prejudice or the effect on substantial

rights.” Id. (quotation marks omitted). A defendant seeking a reversal of his

conviction on the ground that the district court committed plain error under Rule

11 in accepting his guilty plea must show a reasonable probability that, but for the


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error, he would not have entered the plea. United States v. Dominguez Benitez,

542 U.S. 74, 83 (2004). On plain-error review, we “may consult the whole record

when considering the effect of any error on substantial rights.” United States v.

Monroe, 353 F.3d 1346, 1350 (11th Cir. 2003) (quotation marks omitted). “There

is a strong presumption that the statements made during a plea colloquy are true.”

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

      “The foundational principles governing guilty plea procedures derive from

constitutional notions of due process.” United States v. Presendieu, 880 F.3d 1228,

1238 (11th Cir. 2018). “[I]f a defendant’s guilty plea is not equally voluntary and

knowing, it has been obtained in violation of due process and is therefore void.”

McCarthy v. United States, 394 U.S. 459, 466 (1969). “[A] plea does not qualify

as intelligent unless a criminal defendant receives real notice of the true nature of

the charge against him, the first and most universally recognized requirement of

due process.” Bousley v. United States, 523 U.S. 614, 618 (1998) (quotation

marks omitted).

      “Building on these fundamental constitutional principles, Rule 11(b) sets out

procedures that district courts must follow when accepting guilty pleas.”

Presendieu, 880 F.3d at 1238. Under Rule 11, before a court can accept a guilty

plea, it must inform the defendant of his rights should he plead not guilty, the

nature of the charges against him, the potential penalties, and the court’s obligation


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to calculate his advisory guideline range. See Fed. R. Crim. P. 11(b)(1)(B)-(E),

(G)-(M). The court must also explain that a guilty plea waives the defendant’s trial

rights and ensure that the plea is entered voluntarily and is supported by a

sufficient factual basis. See Fed. R. Crim. P. 11(b)(1)(F), (b)(2)-(3). Further, the

court must explain that the defendant can be prosecuted for perjury for testifying

falsely under oath. See Fed. R. Crim. P. 11(b)(1)(A).

      Rule 11 is “designed to address the three core objectives” necessary for a

knowing and voluntary plea: (1) the guilty plea is free of coercion; (2) the

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

understands the direct consequences of the guilty plea. Presendieu, 880 F.3d at

1238 (quotation marks omitted). Whether the court has complied with the second

core objective depends on a variety of factors, including the complexity of the

offense and the defendant’s intelligence and sophistication. Id. There is no

“simple or mechanical rule” that must be applied in determining whether the

district court adequately informed the defendant of the nature of the charges

brought against him. United States v. Camacho, 233 F.3d 1308, 1314 (11th Cir.

2000) (quotation marks omitted). We have held that, for simple charges, “a

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

questions about it, will usually suffice.” United States v. James, 210 F.3d 1342,

1344–45 (11th Cir. 2000) (quotation marks omitted).


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      “[I]n some cases, a factual proffer may set forth in such detail the facts of

the crime that it effectively incorporates some elements of the offense.”

Presendieu, 880 F.3d at 1239. In Presendieu, we concluded that, although the

district court did not explicitly state each of the elements of the charge in its own

voice, all of the necessary factual material was contained in the factual proffer as

recited. Id. In United States v. Wiggins, the defendant argued that he was not

informed of the charges because the district court had not separately outlined each

element of the offense or asked him if he understood those elements. 131 F.3d

1440, 1442 (11th Cir. 1997) (per curiam). We determined that there was no plain

error because the district court had incorporated the substance of the elements of

the charge by telling the defendant to listen to the government’s factual proffer, the

defendant unequivocally admitted to committing the crime, and the district court

made a factual finding that the defendant had entered an informed guilty plea based

on its observation of him at the plea colloquy. Id.

      To comply with the third core objective, the district court must inform the

defendant of the rights that he gives up by pleading guilty, the court’s authority to

impose certain punishments, and the possibility of a perjury prosecution for false

statements during the plea colloquy. See Moriarty, 429 F.3d at 1019; see also Fed.

R. Crim. P. 11(b)(1). “[W]here a signed, written plea agreement describing a

mandatory minimum sentence is specifically referred to during a Rule 11 plea


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colloquy, the core principle that the defendant be aware of the consequences of his

plea has been complied with.” United States v. Jones, 143 F.3d 1417, 1420 (11th

Cir. 1998) (per curiam).

      It is unlawful for a person to knowingly and intentionally possess with the

intent to distribute a controlled substance. 21 U.S.C. § 841(a)(1). A person who

possesses with the intent to distribute 28 grams or more of a mixture and substance

containing a detectable amount of cocaine base, “shall be sentenced to a term of

imprisonment which may not be less than 5 years and not more than 40 years.” Id.

§ 841(b)(1)(B). Section 924(c)(1)(A) provides, in relevant part, that “any person,

who during and in relation to any . . . drug trafficking crime . . . , uses or carries a

firearm, or who, in furtherance of any such crime, possesses a firearm,” will

receive a term of not less than five years’ imprisonment imposed in addition to the

punishment provided for the drug-trafficking crime. 18 U.S.C. § 924(c)(1)(A)(i).

The language from prong one, “during and relation to,” is broader than the

language from prong two, “in furtherance of.” United States v. Madden, 733 F.3d

1314, 1318 (11th Cir. 2013). We have held that the district court plainly erred

where it constructively amended the indictment by replacing “in furtherance of”

with “during and relation to” in the jury instructions because it broadened the

possible basis for conviction. Id. at 1318–19. We concluded that the constructive




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amendment prejudiced the defendant because he may have been convicted on a

charge that was not in the indictment. Id. at 1322–23.

      Under § 924(c), we have required that, for a conviction under the possession

prong, the government must “establish that the firearm helped, furthered,

promoted, or advanced the drug trafficking.” United States v. Timmons, 283 F.3d

1246, 1252 (11th Cir. 2002). “[T]he presence of a gun within the defendant’s

dominion and control during a drug trafficking offense is not sufficient by itself to

sustain a § 924(c) conviction.” Id. at 1253. The court may consider a variety of

factors to establish the nexus between the gun and the drug operation, including:

         the type of drug activity that is being conducted, accessibility of the
         firearm, the type of the weapon, whether the weapon is stolen, the
         status of the possession (legitimate or illegal), whether the gun is
         loaded, proximity to the drugs or drug profits, and the time and
         circumstances under which the gun is found.

Id. (quotation marks omitted). We have provided that a defendant who was found

under the covers of his bed, along with a gun, a quantity of methamphetamine, and

several hundred dollars in cash “easily meets” the “in furtherance” requirement.

United States v. Lopez-Garcia, 565 F.3d 1306, 1322 (11th Cir. 2009). Specifically,

we have emphasized the accessibility of the gun and the proximity of the gun to the

drugs and drug profits. Id.; see also Timmons, 283 F.3d at 1253 (concluding that

evidence of a “bullet proof vest, crack cocaine on the stove and under the cushions

of the couch, two fully loaded firearms on top of the oven and ammunition inside


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the oven in the living room of his apartment . . . was sufficient for the jury to have

concluded that Timmons was guilty of possessing the firearms ‘in furtherance of’

drug trafficking”).

      B.     Discussion

      Bynum contends that his guilty plea should be vacated because he did not

understand the nature of his charges or the consequences of his guilty plea. He first

contends that he believed that he pleaded guilty to a felon in possession of a firearm

charge, which did not have a mandatory minimum sentence. In making this

argument, Bynum points to his testimony and his sentencing counsel’s testimony

during the § 2255 hearing. At his change of plea hearing, however, Bynum

confirmed that he had received a copy of the information containing the two charges

against him and that he had discussed these offenses with counsel. Even if he was

misinformed by counsel about the nature of these charges, the court made clear at

his change of plea hearing that he was pleading guilty to one count of possession

with intent to distribute 28 grams or more of cocaine bases and one count of

possession of a firearm in furtherance of a drug-trafficking crime.

      Bynum also claims that he did not understand the charges against him because

at his change of plea hearing, the Government inaccurately stated the elements as to

count two—stating that he possessed the firearm “during [and] in relation to” a drug-

trafficking crime instead of “in furtherance of” said drug-trafficking crime.


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Bynum’s sentencing counsel confirmed that the Government accurately stated the

elements and Bynum was not asked if he had any questions. Notwithstanding this

misstatement of an element of count two at the change of plea hearing, the plea

agreement—which Bynum confirmed he had read and discussed with his attorney—

accurately stated the element. Moreover, the factual proffer described that police

located crack cocaine in Bynum’s bedroom next to his wallet on the nightstand,

powder cocaine in Bynum’s dresser, a loaded .40 caliber handgun underneath his

pillow, a loaded .38 revolver in his closet, and a rifle at the foot of his bed. Bynum

agreed that he possessed these narcotics with the intent to distribute them and that

he possessed the firearms in his residence in furtherance of distributing the narcotics.

He also confirmed that, these facts were true and correct and that, had he proceeded

to trial, the Government would have been able to prove the facts within the factual

proffer beyond a reasonable doubt. Accordingly, despite misstating one of the

elements to count two during the change of plea hearing, the Government

incorporated the elements of the offense into its plea offer—which it had Bynum

listen to at the hearing and which Bynum stated were true and correct. See

Presendieu, 880 F.3d at 1239–41; Wiggins, 131 F.3d at 1442.

      Second, Bynum contends that he did not understand that he was facing a

mandatory ten-year minimum sentence based on his counsel’s advice and the

sentencing court’s explanation during his plea colloquy. The following mistakes


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regarding the understanding of the mandatory total ten-year imprisonment, mostly

occurring after Bynum’s plea, took place: (1) probation neglected to make count

one’s low end of the guideline range reflect the statutory mandatory minimum and

neither party objected; (2) Bynum’s sentencing counsel moved for a downward

departure, requesting a sentence of one day, as to count one—relief the sentencing

court did not have the discretion to order; (3) the Government requested a sentence

of 57 months’ imprisonment as to count one—when the sentencing court did not

have discretion to impose anything less than 60 months imprisonment; (4) the court

initially sentenced Bynum to 24 months as to count one; and (5) Bynum asked the

court if he was facing a ten year sentence and asked if the court “could do maybe a

split or something.” Despite all of the foregoing, the district court did not plainly

err in advising Bynum about the consequences (namely, the two consecutive

mandatory minimum terms of imprisonment) of his guilty plea. At the plea hearing,

the district court properly explained that count one had a statutory minimum of five

years and that count two had a statutory minimum of five years “to run consecutive

to any other term of imprisonment.” Although the court only asked Bynum if he

understood the maximum possible sentences, Bynum confirmed that he had read and

discussed the plea agreement—which correctly stated the consecutive mandatory

minimums and which Bynum also signed—with his counsel. See Medlock, 12 F.3d

at 187 (“There is a strong presumption that the statements made during the colloquy


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are true.”). Because both the district court and the plea agreement both properly

advised Bynum of the mandatory minimum sentences, he cannot show that the

district court plainly erred in advising him of the consequences of his plea. See

Jones, 143 F.3d at 1420 (“We hold that where a signed, written plea agreement

describing a mandatory minimum sentence is specifically referred to during a Rule

11 plea colloquy, the core principle that the defendant be aware of the consequences

of his plea has been complied with.”).

      Third, Bynum contends that he would not have pleaded guilty had he been

accurately informed of the charges against him and the penalties they carried. At his

second sentencing hearing, Bynum was given the opportunity to withdraw his guilty

plea but did not do so. Despite Bynum’s arguments that he was not given the chance

to understand that he could withdraw the plea and that the district court failed to

address him personally, (1) counsel stated at the hearing that he discussed the

possibility of withdrawing the plea with Mr. Bynum; (2) counsel stated that Bynum

indicated that he did not wish to proceed to trial; (3) the sentencing court stated that,

if requested, it would set aside Bynum’s plea; (4) the sentencing court addressed

Bynum personally, gave him the opportunity to speak on the matter, and Bynum

never stated that he wished to withdraw his plea.           Bynum has therefore not

established that, but for the alleged errors, he would not have entered his plea. See

Dominguez Benitez, 542 U.S. at 83; Moritarty, 429 F.3d at 1019.


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      Fourth, Bynum contends that the sentencing court plainly erred during his plea

colloquy. First, he contends that the court did not sufficiently inquire about his

understanding of the charges and the mandatory minimums they carried. The court

placed Bynum under oath and warned him that he could be prosecuted for perjury if

he did not tell the truth. As outlined above, Bynum confirmed that he had read and

discussed the plea agreement—which correctly stated the mandatory minimums and

which Bynum also signed—with his counsel. We presume these statements to be

true. See Medlock, 12 F.3d at 187. The court also properly explained that count one

had a statutory minimum of five years and that count two had a statutory minimum

of five years “to run consecutive to any other term of imprisonment” at the change

of plea hearing. The court informed Bynum of his rights should he decide to plead

not guilty. Moreover, the court encouraged Bynum to ask questions if he did not

understand anything in the plea colloquy and informed him of his ability to speak

with his attorney off the record if requested.

      Fifth, Bynum contends that the district court failed to address him personally

during his second sentencing hearing because it was clear he did not understand the

consequences of his plea, and, had he understood, he would have withdrawn his plea.

As outlined above both the court and the plea agreement informed Bynum of the

mandatory minimum consecutive sentences, and Bynum’s claim that he would have

withdrawn his plea is belied by his failure to do so at the second sentencing hearing


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despite his counsel raising the possibility with him and the court confirming that it

would permit him to do so.

      Finally, Bynum contends that the plea was not supported by a sufficient

factual basis. As to count one, Bynum contends that the only evidence supporting

the drug quantity was his own statements, which the Government undermined at the

sentencing hearing by stating that it believed he only made such statements to protect

his son. As to count two, Bynum contends that the factual basis establishes only that

he possessed firearms in close proximity to drugs but did not show a nexus between

the guns and drugs nor did it indicate the amount of drugs found in his bedroom. The

court did not err in determining that the factual basis for the plea was sufficient.

First, Bynum confirmed that he read and fully discussed the factual basis with his

counsel, that those facts were true, and that if the case proceeded to trial the

Government would prove those facts beyond a reasonable doubt. He also confirmed

that he was pleading guilty because he was, in fact, guilty. For count one, the factual

proffer relied on Bynum’s post-Miranda statements that all of the firearms, narcotics,

and U.S. currency within the residence were his. He signed the factual proffer,

which also stated that the total weight of cocaine base found in the residence was

228 grams and that he possessed the drugs with the intent to distribute them. For

count two, the factual proffer (again, which Bynum signed) stated that he possessed

the firearms in furtherance of the drug-trafficking scheme. As previously stated,


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despite the Government misstating an element of count two at the plea hearing, the

facts as outlined in the signed factual proffer—namely that police recovered two

loaded firearms from Bynum’s bedroom in close proximity to crack and powder

cocaine, U.S. currency, and Bynum’s wallet—nonetheless support Bynum’s

conviction. See Madden, 733 F.3d at 1318–19. Accordingly, the district court did

not plainly err in determining that the factual basis supported Bynum’s plea as to

both counts. For all of the foregoing reasons, we conclude that the district court did

not plainly err, either as a matter of due process or under Rule 11, in accepting

Bynum’s guilty plea.

                  III. INEFFECTIVE ASSISTANCE CLAIMS

      A.     Legal Standards

      We review ineffective assistance of counsel claims de novo, as a mixed

question of fact and law. Caderno v. United States, 256 F.3d 1213, 1216–17 (11th

Cir. 2001) (per curiam).

      We “will not generally consider claims of ineffective assistance of counsel

raised on direct appeal where the district court did not entertain the claim nor

develop a factual record.” United States v. Patterson, 595 F.3d 1324, 1328 (11th

Cir. 2010) (quotation marks omitted). A 28 U.S.C. § 2255 motion is the preferred

means of deciding an ineffective-assistance claim, “even if the record contains

some indication of deficiencies in counsel’s performance.” Id. (quotation marks


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omitted). Nevertheless, we will consider ineffective-assistance claims “if the

record is sufficiently developed.” Id. (quotation marks omitted).

      In United States v. Puentes-Hurtado, we declined to address the defendant’s

ineffective-assistance claim despite the record containing “some evidence

concerning [counsel’s] performance” because it was not sufficiently developed to

address the claim. 794 F.3d 1278, 1285 (11th Cir. 2015). In that case, the

defendant argued that his counsel provided ineffective assistance because counsel

advised him that he would be sentenced based on no more than five kilograms of

cocaine, even though the indictment and the plea agreement both indicated that the

quantity of cocaine involved in the narcotics conspiracy was five kilograms or

more. Id. In declining to address the ineffective-assistance claim, we noted that

there was no testimony from the defendant or his counsel concerning their

discussions about or their understanding of the plea agreement or drug quantity

issues, and there was no testimony from the defendant concerning whether he

would have insisted on going to trial had he known that his advisory guideline

range would not be limited to 5 kilograms of cocaine and could be based on 244

kilograms. Id.

      In United States v. Camacho, the defendant raised three claims of ineffective

assistance of counsel in a post-trial motion. 40 F.3d 349, 354–55 (11th Cir. 1994),

overruled on other grounds by United States v. Sanchez, 269 F.3d 1250, 1277


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(11th Cir. 2001) (en banc). The district court held an evidentiary hearing, but only

on one of the claims. Id. at 355. When the defendant raised the same three claims

in his direct appeal, we declined to address the two claims that the district court

had not considered at the evidentiary hearing because the record was insufficiently

developed. Id. Concluding that the defendant’s counsel had not been ineffective

as to the third claim, we affirmed the conviction but noted that the defendant’s

remaining claims of ineffective assistance could be raised in a subsequent § 2255

proceeding. Id.

      B.     Discussion

      In this case, Bynum argues that his counsel for the change of plea hearing

and sentencing was ineffective because he misadvised Bynum about the nature of

his charges and consequences of his plea, overlooked obvious defenses, and failed

to subject the charges to meaningful adversarial testing. He further asserts that,

thanks to the § 2255 hearing below, there is sufficient record evidence for this

court to consider his ineffective assistance claims.

      Because the record is not fully developed, we decline to address Bynum’s

remaining claims of ineffective assistance of counsel. See Puentes-Hurtado, 794

F.3d at 1285 (“Although the record contains some evidence concerning [counsel’s]

performance, it is not sufficiently developed to allow us to address the ineffective

assistance of counsel claim.”); Patterson, 595 F.3d at 1328. Even though this case


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is unlike many other cases where ineffective assistance claims are raised on direct

appeal by virtue of there being an evidentiary hearing in Bynum’s § 2255

proceeding before the district court, that hearing was limited to the issue of

whether counsel was defective in failing to file a notice of appeal. Testimony at

the § 2255 hearing did touch on the plea agreement and contained some evidence

concerning counsel’s performance but Bynum did not have a full and unfettered

opportunity to develop the record regarding all of his ineffective assistance of

counsel claims and the magistrate judge did not address them. We decline to

consider Bynum’s ineffective assistance claims in this direct appeal but he may

raise those claims in a subsequent § 2255 proceeding. See Camacho, 40 F.3d at

355.

       AFFIRMED.




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