                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                  Nos. 14-4504, 14-4505
                                    _____________

                            UNITED STATES OF AMERICA

                                             v.

                                   BRANDON TANN,
                                                  Appellant
                                    _____________

               APPEAL FROM THE UNITED STATES DISTRICT COURT
                          FOR THE DISTRICT OF DELAWARE
           (D.C. Criminal Action Nos. 1-07-cr-00055-001 and 1-13-cr-00100-001)
                        District Judge: Honorable Leonard P. Stark
                                     ______________

                       Submitted Under Third Circuit L.A.R. 34.1(a)
                                   October 26, 2015
                                   ______________

            Before: GREENAWAY, JR., SCIRICA, and ROTH, Circuit Judges.
                          (Opinion Filed: March 10, 2016)

                                     ______________

                                        OPINION*
                                     ______________




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.

       Appellant Brandon Tann appeals the sentences imposed by the District Court after

he pled guilty to one count of possession of a firearm by a felon, in violation of 18 U.S.C.

§ 922(g)(1), and admitted to violating a condition of a previously-imposed term of

supervised release. Tann contends that the District Court erred by failing to establish that

Tann’s guilty plea was knowing and voluntary. For the reasons that follow, we will

affirm the District Court’s judgments of conviction.

                                  I. BACKGROUND

       On August 28, 2013, Tann was arrested and charged with being a felon in

possession of a firearm. At the time of his arrest, Tann was under federal supervision

resulting from a prior conviction. On September 5, 2013, the United States Probation

Office charged Tann with violating a term of his supervised release.

       Subsequently, Tann entered into a plea agreement. He pled guilty to count two

(possession of a shotgun) of a two-count indictment. The government dismissed count

one (possession of a pistol). Based on the plea, the District Court sentenced Tann to

twenty-four months of imprisonment, to be followed by three years of supervised release.

At the same time, the District Court also held a supervised release revocation hearing.

Consistent with his guilty plea, Tann admitted guilt to violating the term of his supervised

release that prohibited him from committing a state or federal offense. For the

supervision violation, the District Court sentenced Tann to twenty-four months of
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imprisonment, to be served consecutively to the sentence imposed for the substantive

possessory offense.

       The judgments of conviction were entered on November 12, 2014, and Tann filed

timely notices of appeal in both cases.

                                     II. ANALYSIS 1

       The only issue on appeal is whether the District Court conducted a sufficient

colloquy at the June 3, 2014 hearing to determine that Tann’s guilty plea was knowing

and voluntary. Tann failed to pose a timely objection to the District Court; accordingly,

“we review the adequacy of the colloquy for plain error.” United States v. Lessner, 498

F.3d 185, 192 (3d Cir. 2007) (citing United States v. Vonn, 535 U.S. 55, 58–59 (2002);

Fed. R. Crim. P. 52(b)).

       “Plain error exists only when (1) an error was committed (2) that was plain, and

(3) that affected the defendant’s substantial rights.” Id. (citing United States v. Stevens,

223 F.3d 239, 242 (3d Cir. 2000)). To meet the third prong, a “defendant must prove

that, were it not for the plain error committed by the District Court at the time of his plea

. . . he would have pled not guilty[,] . . . and not merely that there may or may not have

been a prejudicial impact and that he might have not pled guilty.” United States v. Dixon,

308 F.3d 229, 234 (3d Cir. 2002). “‘If all three conditions are met, [we] may then

exercise [our] discretion to notice a forfeited error, but only if (4) the error seriously

       1
        The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
                                               3
affect[s] the fairness, integrity, or public reputation of judicial proceedings.’” United

States v. Vazquez, 271 F.3d 93, 99 (3d Cir. 2001) (quoting Johnson v. United States, 520

U.S. 461, 467 (1997)).

       Because a defendant entering a plea of guilty waives several constitutional rights,

a district court must ensure that the guilty plea is made “voluntarily, knowingly, and

intelligently, with sufficient awareness of the relevant circumstances and likely

consequences.” Lessner, 498 F.3d at 192 (internal quotation marks and citations

omitted). Rule 11 of the Federal Rules of Criminal Procedure sets forth standards

governing the acceptance of guilty pleas “‘to assist the district judge in making the

constitutionally required determination that a defendant’s guilty plea is truly voluntary’

and in producing ‘a complete record . . . of the factors relevant to this voluntariness

determination.’” Id. at 193 (quoting McCarthy v. United States, 394 U.S. 459, 465

(1969)). Rule 11 requires a district court, inter alia, to ascertain that: the plea is

voluntary; the defendant understands the rights that he is waiving by pleading guilty; and

there is a factual basis for the plea. See Fed. R. Crim. P. 11(b)(1), (2). Even if a court

deviates from these requirements, the error is harmless if it does not affect a defendant’s

substantial rights. Fed. R. Crim. P. 11(h).

       Tann argues that the District Court should not have accepted his guilty plea before

questioning him on his statements to the Court that he was previously on medication to

treat bipolar disorder but had not taken any medication for two days. Our review of the

                                               4
transcript of the plea colloquy reveals Tann’s argument to be unavailing. Although the

District Court did not inquire further about Tann’s bipolar medication, it developed an

adequate record to satisfy the procedural requirements of Rule 11 and the constitutional

requirements that a guilty plea be knowing, voluntary, and intelligent.

       After questioning Tann about mental illness, the District Court inquired whether

Tann was under the influence of any narcotics, drugs, or alcohol, to which Tann

answered in the negative. The Court explained the plea proceedings and later confirmed

that Tann generally “underst[ood] why we’re here today and what’s going on today.”

App. 44, 47. It also ascertained that no one had threatened Tann or otherwise forced him

to enter into the plea.

       The Court further confirmed that Tann understood the specific constitutional rights

that he was waiving by pleading guilty, including the right to plead not guilty, the right to

trial by jury, the right to assistance of counsel at trial, and the right to cross-examine

adverse witnesses. The Court also explained the sentencing options that Tann would

face, including the applicable maximum penalties. In response to the District Court’s

questions, Tann explained his criminal conduct. When Tann questioned certain details of

the government’s evidentiary proffer, the Court ordered a recess to allow Tann to confer

with his counsel. This interaction demonstrates that Tann was lucid and actively engaged

in the plea proceeding.

       We are satisfied that Tann’s answers to all of the District Court’s questions were

                                               5
responsive. We are likewise satisfied, as was the District Court, that Tann’s statements

and conduct throughout the guilty plea hearing demonstrated the voluntariness of his

plea. Finally, when the Court asked Tann’s counsel whether he “ha[d] any reason to

doubt Mr. Tann’s competence” to enter a guilty plea, counsel responded: “No.” App. 47;

cf. United States v. Jones, 336 F.3d 245, 256 (3d Cir. 2003) (explaining that an attorney’s

affirmative representation about her client’s competency may be considered by a district

court). Based on the foregoing, we are satisfied that Tann’s plea was knowing and

voluntary.

                                III. CONCLUSION

       For the foregoing reasons, we will affirm the judgments of conviction of the

District Court.




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