              Case: 15-10197     Date Filed: 11/05/2015   Page: 1 of 5


                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 15-10197
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 4:13-cr-00022-HLM-WEJ-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                      versus

JAYE LEIGH THOMAS,
a.k.a. James Leigh Thomas,

                                                             Defendant-Appellant.
                           ________________________

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

                                (November 5, 2015)

Before WILSON, JORDAN, and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Jaye Leigh Thomas appeals his conviction for possessing cocaine with intent

to distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2.
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Thomas argues that the district court plainly erred by failing to comply with

Federal Rule of Criminal Procedure 11 before accepting his plea of guilty and in

failing to ensure that his plea was knowingly and voluntarily entered. Specifically,

Thomas complains that the district court (1) failed to question him during his Rule

11 plea colloquy about whether he was under the influence of drugs or alcohol or

under a doctor’s care; (2) failed to advise him of his right to testify and to present

evidence; and (3) failed to make an on-the-record determination that his guilty plea

was voluntary. Thomas did not raise these allegations with the district court or

move to withdraw his plea.

      Where the defendant neither objects to the plea proceedings nor moves to

withdraw the plea, we review the district court’s compliance with Rule 11 for plain

error. United States v. Vonn, 535 U.S. 55, 59, 122 S. Ct. 1043, 1046 (2002).

Under plain error review, the defendant must show (1) error, (2) that is plain, and

(3) that affects substantial rights. United States v. Turner, 474 F.3d 1265, 1276

(11th Cir. 2007) (internal quotation mark omitted). If these elements are met, we

may recognize the error, in our discretion, if the error “seriously affects the

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

quotation mark omitted). Plain error cannot be established “where the explicit

language of a statute or rule does not resolve an issue” and “there is no precedent

from the Supreme Court or this [c]ourt directly resolving it.” United States v.


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Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003). “A defendant who seeks

reversal of his conviction after a guilty plea, [claiming] the district court committed

plain error under Rule 11, must show a reasonable probability that, [absent] the

error, he would not have” pled guilty. United States v. Dominguez Benitez, 542

U.S. 74, 83, 124 S. Ct. 2333, 2340 (2004). Moreover, we “will uphold a plea

colloquy that technically violates Rule 11, but adequately addresses” the core

concerns of Rule 11. United States v. Hernandez-Fraire, 208 F.3d 945, 950 (11th

Cir. 2000).

      Under Rule 11, the district court must “address the defendant personally in

open court and inform the defendant of, and determine that the defendant

understands, the nature of the” plea being offered and the “potential consequences”

of that plea. United States v. Lewis, 115 F.3d 1531, 1535 (11th Cir. 1997) (per

curiam) (internal quotation marks omitted). To determine whether the waiver is

knowing and voluntary, a court accepting a guilty plea must comply with the three

core concerns 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 direct consequences of his plea.” United States v. Jones,

143 F.3d 1417, 1418–19 (11th Cir. 1998) (per curiam) (internal quotation marks

omitted). We base our determination of whether these core concerns were satisfied

by reviewing the record of the Rule 11 hearing, including any written plea


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agreement. Id. at 1420. There is a strong presumption that statements made during

a plea colloquy are true. United States v. Medlock, 12 F.3d 185, 187 (11th Cir.

1994).

      Thomas’s claim that the court failed to advise him of his right to testify or to

present evidence is without merit. Thomas entered into a written plea agreement

with the government. The plea agreement reflects a list of rights that Thomas

waived by pleading guilty. This section includes a statement that “[i]f the

defendant wished, he could testify on his own behalf and present evidence in his

defense.” The agreement specifically states Thomas understands he is giving up

these rights. At the Rule 11 plea colloquy, Thomas stated he was reasonably well-

satisfied with the plea agreement. He admitted he was guilty and that he had

sufficient time to think about his plea agreement and discuss it with his attorney

before pleading guilty.

      As to Thomas’s claim that the district court should have asked him whether

he was under the influence of drugs or alcohol, or under a physician’s care, before

accepting a guilty plea, any such error cannot be deemed “plain” since Rule 11

does not impose such a requirement on the sentencing court, nor is there case law

from this circuit reflecting such a requirement. And, Thomas does not allege that

he was, in fact, under the influence of drugs or alcohol, or under a physician’s care

at the plea hearing.


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      Finally, as to Thomas’s claim that the district court failed to make an on-the-

record determination that his guilty plea was voluntary as required by Rule

11(b)(2), Thomas verified in his plea agreement that his plea was voluntarily made.

If there is plain error, Thomas is unable to demonstrate that such error affected his

substantial rights because he has made no showing that he would have pleaded not

guilty and gone to trial, absent the error. Even if there was error that affected his

substantial rights, he has not demonstrated that the error seriously affects the

fairness, integrity, and public reputation of judicial proceedings.

             AFFIRMED.




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