     Case: 10-50501     Document: 00511651458         Page: 1     Date Filed: 11/01/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         November 1, 2011
                                     No. 10-50501
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

TERRY LEE KELLUM, also known as Terry Kellum,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:09-CR-191-5


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Terry Lee Kellum appeals his conviction following his guilty plea to
conspiracy with intent to distribute at least 500 grams of methamphetamine and
conspiracy to commit money laundering. Kellum argues that the district court
plainly erred in failing to advise him during the rearraignment proceeding of the
possibility of a forfeiture money judgment being entered against him. He
contends that if he had known that his plea could be used to substantiate the



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 10-50501    Document: 00511651458      Page: 2    Date Filed: 11/01/2011

                                  No. 10-50501

forfeiture judgment, he may not have entered the plea. He asserts that his
substantial rights were violated and that his plea of guilty should be set aside.
      In evaluating whether an alleged Rule 11 error affects a defendant’s
substantial rights, this court looks to whether there exists a “reasonable
probability that, but for the error, he would not have entered the plea.” United
States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). In making this assessment,
the reviewing court looks to the entire record, not to the plea proceedings alone.
United States v. Vonn, 535 U.S. 55, 74-75 (2002).
      A review of the entire record shows that prior to the entry of his guilty
plea, Kellum had received notice in his indictment that the forfeiture judgment
was being sought and had stipulated to the facts necessary to support the
judgment. In light of this knowledge, there is not a reasonable probability that
Kellum would not have entered the guilty plea if the district court had advised
him of the possibility of the forfeiture judgment. Kellum also failed to raise any
objection when the Government moved for the money judgment of forfeiture and
did not object to the statement contained in the presentence report (PSR)
concerning the mandatory forfeiture. Nor did he make an objection when the
Government moved to have the money judgment incorporated in the written
judgment of conviction and sentence.
      The record reflects that Kellum had knowledge of the forfeiture
proceedings prior to his plea and, therefore, he cannot demonstrate that the
district court’s failure to specifically mention the forfeiture at his rearraignment
hearing had an effect on his decision to plead guilty. His failure to file any
challenges to the Government’s subsequent motion for a money judgment and
to the PSR indicates his concession to the forfeiture action. In the absence of a
showing that the omission affected his substantial rights, Kellum has failed to
demonstrate plain error, and the judgment is AFFIRMED.




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