            Case: 12-14948   Date Filed: 08/09/2013   Page: 1 of 6


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-14948
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:12-cr-00076-MSS-TBM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

JOSHUA ALLEN TAYLOR,

                                                          Defendant-Appellant.

                       ________________________

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

                             (August 9, 2013)



Before CARNES, Chief Judge, BARKETT and BLACK, Circuit Judges.

PER CURIAM:
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      Joshua Allen Taylor appeals his conviction and sentence under 18 U.S.C.

§ 2252(a)(1), (b)(1), for transporting visual depictions of a minor engaging in

sexually explicit conduct. Taylor contends, for the first time on appeal, that his

guilty plea was not knowing and voluntary because the incorrect statutory

maximum term of supervised release was stated both in the written plea agreement

and during the plea colloquy. Taylor also asserts the Government breached the

plea agreement by requesting a lifetime term of supervised release at sentencing, in

excess of the statutory maximum detailed in the plea agreement. After review, we

affirm the district court.

Knowing and Voluntary Plea

      Taylor first contends that his guilty plea was unknowing and involuntary

because the plea agreement stated, and the district court informed him, that he

faced a maximum five-year term of supervised release, instead of the actual

maximum of lifetime supervised release. The Government concedes error, but

contends no prejudice has been shown.

      Because Taylor did not object on this basis in the district court, we review

for plain error. See United States v. Ternus, 598 F.3d 1251, 1254 (11th Cir. 2010).

To establish plain error, a defendant must show error, that is plain, “that prejudiced

him by affecting his substantial rights.” Id. Prejudice requires a “reasonable

probability that, but for the error, the defendant would not have entered the plea.”


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Id. (alteration and quotations omitted). Even then, we may not correct the error

“unless it seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quotations omitted).

      When appropriate, we will consider the whole record when assessing

whether a Rule 11 error affects a defendant’s substantial rights. United States v.

Brown, 586 F.3d 1342, 1345 (11th Cir. 2009). Misadvising as to the maximum

term of supervised release for a guilty plea can go to the knowing and voluntary

nature of that plea. United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir.

2005); Fed. R. Crim. P 11(b)(1)(H).

      In Brown, both the plea agreement and district court misadvised the

defendant as to the maximum term of supervised release. Brown, 586 F.3d at

1346. Brown’s PSI stated the correct term of supervised release, however, and

Brown did not object to the PSI. Id. At the sentencing hearing, he also

acknowledged discussing the PSI with his attorney and understanding its contents.

Id. Brown did not object following pronouncement of the sentence, despite the

fact that the supervised release imposed exceeded the statutory maximum stated in

the plea agreement and during the plea colloquy. Id. We held that “Brown’s own

conduct indicates that his substantial rights were not harmed by the district court’s

error during the plea hearing.” Id. We further noted that Brown had failed to show

a reasonable probability that he would not have pled guilty but for the Rule 11


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error. See id. at 1347 (citing United States v. Dominguez Benitez, 542 U.S. 74, 83

(2004)).

      Brown is squarely on point with this case. While the plea agreement and

magistrate judge misadvised Taylor as to the statutory maximum term of

supervised release and stated that “up to five years” could be imposed, the PSI

included the correct maximum, noting the statutory and Guidelines range was five

years to life. Taylor did not object to the PSI and, at sentencing, acknowledged

reviewing the PSI with his attorney and understanding the PSI. He did not object

following pronouncement of the sentence, which included the lifetime term of

supervised release. He did not file a motion before the district court to withdraw

his plea. Taylor further filed a sentencing memorandum explicitly acknowledged

the applicability of a statutory maximum lifetime term of supervised release prior

to sentencing. Accordingly, he has failed to show that the error affected his

substantial rights or that he would have withdrawn his plea had he known of the

correct statutory maximum term of supervised release.

Government Breach of Plea Agreement

      Taylor also contends the Government breached the plea agreement by

requesting a term of supervised release in excess of the maximum specified in the

plea agreement, requiring this Court to vacate his conviction and sentence.




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      A plea agreement is essentially a contract between the United States and the

defendant that the government is bound to fulfill. Santobello v. New York, 404

U.S. 257, 262 (1971); United States v. Howle, 166 F.3d 1166, 1168 (11th Cir.

1999). We judge an alleged violation of a plea agreement by the defendant’s

reasonable understanding at the time of the plea. United States v. Taylor, 77 F.3d

368, 370 (11th Cir. 1996).

      The statement of the statutory maximum term of supervised release in the

plea agreement was not a “promise” by the Government. Rather, the

Government’s promise was to recommend a sentence within the applicable

Guidelines range as determined by the Court. The PSI determined that the

applicable Guidelines range for supervised release was five years to life.

Receiving no objections to the PSI, the district court adopted it. Accordingly, the

Guidelines range for supervised release, as determined by the district court, was

five years to life. The Government complied with its promise to recommend a

Guidelines range sentence, as determined by the district court, because the lifetime

term of supervised release recommended by the Government was within the

applicable supervised release Guidelines range.

Conclusion

      The district court did not plainly err as to either ground. We affirm Taylor’s

conviction and sentence.


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AFFIRMED.




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