              Case: 12-12408   Date Filed: 02/15/2013   Page: 1 of 5

                                                        [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT

                       ____________________________

                               No. 12-12408
                           Non-Argument Calendar
                       ____________________________

                  D. C. Docket No. 6:11-cr-00207-CEH-GJK-1




UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

     versus

MILTON PAULK,

                                                            Defendant-Appellant.

                       ____________________________

                  Appeal from the United States District Court
                       For the Middle District of Florida
                      ____________________________

                               (February 15, 2013)


Before BARKETT, MARTIN and EDMONDSON, Circuit Judges.
              Case: 12-12408     Date Filed: 02/15/2013    Page: 2 of 5

PER CURIAM:



      Milton Paulk appeals his 180-month sentence, imposed after he pleaded

guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§

922(g)(1), 924(a)(2). No reversible error has been shown; we affirm.

      Before Paulk’s change-of-plea hearing, the government filed a “Notice of

Essential Elements, Maximum Penalties and Factual Basis” that said, among other

things, that Paulk’s offense carried a statutory maximum sentence of ten years’

imprisonment. During Paulk’s change-of-plea hearing, the magistrate judge also

told Paulk that he was subject to a maximum prison sentence of ten years. Paulk

pleaded guilty without a written plea agreement, and the magistrate judge

recommended that Paulk’s plea be accepted. The district court accepted Paulk’s

plea and adjudged him guilty.

      In preparing Paulk’s Presentence Investigation Report, the probation officer

discovered that Paulk had additional convictions -- of which the government had

been unaware -- for violent felonies and serious drug offenses. Based on these

convictions, the probation officer determined that Paulk qualified as an armed

career criminal under the Armed Career Criminal Act (“ACCA”) and, thus, was

subject to a statutory mandatory minimum sentence of 15 years’ imprisonment.




                                          2
                 Case: 12-12408    Date Filed: 02/15/2013   Page: 3 of 5

         Paulk filed an unopposed motion to withdraw his guilty plea, arguing that

the magistrate judge had advised him incorrectly about the potential penalties he

faced.

         At a hearing on his motion, the district court agreed that Paulk could

withdraw his plea.

         But Paulk declined to do so. The court told Paulk that the magistrate judge

had been incorrect about the ten-year maximum sentence. The court explained that

-- because Paulk qualified as an armed career criminal -- he was subject to a

mandatory minimum sentence of 15 years’ imprisonment. Paulk said that he

understood but that he did not want to withdraw his plea. Paulk also preserved the

right to object during his sentencing hearing to a sentence greater than ten years’

imprisonment. Because Paulk withdrew his motion to withdraw his plea, the court

denied the motion as moot.

         Later, at the sentencing hearing, Paulk -- conceding that he had no legal

authority to support his position -- sought specific performance of his “plea

agreement” which he alleged included a ten-year maximum sentence. The court

overruled the objection and sentenced Paulk to 180 months’ imprisonment.




                                            3
                 Case: 12-12408       Date Filed: 02/15/2013        Page: 4 of 5

       On appeal, Paulk contends that the government breached its plea agreement

by seeking a sentence that exceeded ten years’ imprisonment. * We review de novo

whether the government has breached a plea agreement. United States v. De La

Garza, 516 F.3d 1266, 1269 (11th Cir. 2008).

       The government is bound by promises it makes to a defendant to induce the

defendant to plead guilty. United States v. Johnson, 132 F.3d 628, 630 (11th Cir.

1998). “To determine whether the government breached the plea agreement, we

must first determine the scope of the government’s promises.” Raulerson v.

United States, 901 F.2d 1009, 1011 (11th Cir. 1990).

       As a threshold matter, we see no binding plea agreement between Paulk and

the government. That no written plea agreement exists is clear. And nothing

evidences that Paulk pleaded guilty pursuant to an oral plea agreement. During the

change-of-plea hearing, the magistrate judge asked Paulk whether anyone had

promised him anything in exchange for his guilty plea. Paulk replied only that,

before his plea, his lawyer had told him that he did not qualify for an ACCA

enhancement.

       Although the government’s “Notice of Essential Elements, Maximum

Penalties and Factual Basis” said that Paulk’s offense was “punishable by a term of


*
 Paulk does not challenge the district court’s conclusion that he qualifies as an “armed career
offender” under the ACCA. He also does not contend that his guilty plea was unknowing or
involuntary or that the district court violated Fed.R.Civ.P. 11.
                                                 4
              Case: 12-12408    Date Filed: 02/15/2013     Page: 5 of 5

not more than 10 years,” the government made no promises about the length of

sentence it would request or about whether it would seek an enhancement under

the ACCA. Because Paulk fails to show that the government promised to avoid

seeking a sentence exceeding ten years, he cannot show a breach.

      In addition, when a defendant qualifies as an armed career criminal, the

ACCA requires district courts to impose an enhanced sentence “regardless of

whether the Government affirmatively seeks such enhancement.” See United

States v. Cobia, 41 F.3d 1473, 1475-76 (11th Cir. 1995).

      AFFIRMED.




                                         5
