                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             February 15, 2008
                             No. 06-16522                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                  D. C. Docket No. 06-80108-CR-DMM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

TICO DAKTARI HOLMAN,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________


                           (February 15, 2008)


Before BLACK, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
      Tico Daktari Holman appeals his conviction and sentence for possession

with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C.

§ 841(a)(1). Holman asserts two issues on appeal, which we address in turn.

                                           I.

      Holman first argues the district court violated Rule 11 of the Federal Rules

of Criminal Procedure when it failed to inform Holman he had the right to continue

in his plea of not guilty, and he had the right of compulsory process for any witness

on his behalf.

      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. Monroe, 353 F.3d 1346, 1349 & n.2 (11th Cir. 2003). Plain

error exists only where (1) there is an error; (2) the error is plain or obvious; and

(3) the error affects the defendant’s substantial rights. If those three conditions are

met, a court may correct the error only if “the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. at 1349. Furthermore,

“a defendant who seeks reversal of his conviction after a guilty plea, on the ground

that the district court committed plain error under Rule 11, must show a reasonable

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

States v. Dominguez Benitez, 124 S. Ct. 2333, 2340 (2004). “A defendant must



                                           2
thus satisfy the judgment of the reviewing court, informed by the entire record, that

the probability of a different result is ‘sufficient to undermine confidence in the

outcome’ of the proceeding.” Id.

      A district court accepting a guilty plea must address the three core concerns

of Rule 11, which are to ensure “that a defendant (1) enters his guilty plea free

from coercion, (2) understands the nature of the charges, and (3) understands the

consequences of his plea.” United States v. Moriarty, 429 F.3d 1012, 1019 (11th

Cir. 2005). “To ensure compliance with the third core concern, Rule 11(b)(1)

provides a list of rights and other relevant matters about which the court is required

to inform the defendant prior to accepting a guilty plea.” Id. However, where a

plea colloquy fails to address an item expressly required by Rule 11, we generally

uphold the plea so long as the overall plea colloquy adequately addresses the core

concerns of Rule 11. Monroe, 353 F.3d at 1354. During Rule 11 proceedings,

“matters of substance, not form, are controlling.” Id. at 1351.

      Holman does not contest, and the record reflects, that the court adequately

addressed the first two Rule 11 core concerns. As for the third core concern, the

district court did not expressly advise Holman of his right to persist in a plea of not

guilty or that by not proceeding to trial, Holman relinquished his right to

compulsory process as required by Rule 11. According to the record, however, the



                                           3
district court informed Holman of his right to plead not guilty, and that if he pled

not guilty, he had the right to a trial by jury at which the Government would have

to prove his guilt beyond a reasonable doubt. That statement necessarily implied

that Holman had the right to persist in his plea of not guilty. Additionally, the

district court advised Holman of his right to present witnesses on his own behalf

and cross-examine the Government’s witnesses if he went to trial. Thus, although

the district court’s colloquy did not follow the language of Rule 11 exactly, the

district court did not plainly err because it adequately addressed the substantive

information, that is, the “core concerns,” of Rule 11. Even assuming the district

court’s omissions constitute plain error, Holman has not shown, or even asserted,

that, but for the district court’s failure to inform him of those two rights, he would

not have entered the guilty plea. Accordingly, we affirm Holman’s conviction.

                                           II.

      Holman also contends the district court erred by applying the career offender

enhancement to his sentence because the Government failed to prove by a

preponderance of the evidence that Holman had a prior conviction for carrying a

concealed firearm. Holman asserts the ambiguities of the judgment render it

unclear whether he was convicted for a probation violation or for carrying a

concealed firearm. Furthermore, he contends, even if the Government met its



                                           4
burden of proof regarding the fact of conviction, Holman contends carrying a

concealed firearm is not a crime of violence.

      “We review de novo the district court's application and interpretation of the

sentencing guidelines, and we review factual findings for clear error.” United

States v. Wilks, 464 F.3d 1240, 1242 (11th Cir.), cert. denied, 127 S. Ct. 693

(2006) (citations omitted). “[T]he district court’s decision to classify a defendant

as a career offender pursuant to U.S.S.G. § 4B1.1 is a question of law that we also

review de novo.” United States v. Gibson, 434 F.3d 1234, 1243 (11th Cir.), cert.

denied, 126 S. Ct. 2911 (2006).

      A district court generally may enhance a defendant’s sentence as a career

offender “if (1) the defendant was at least eighteen years old at the time the

defendant committed the instant offense of conviction; (2) the instant offense of

conviction is a felony that is either a crime of violence or a controlled substance

offense; and (3) the defendant has at least two prior felony convictions of either a

crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). The

government must demonstrate all three elements by a preponderance of the

evidence. United States v. Spell, 44 F.3d 936, 938 (11th Cir. 1995). As Holman

does not dispute the first two elements or that he has a prior felony conviction of a




                                           5
controlled substance offense, the only issue before us is whether Holman has a

prior conviction for a crime of violence.

      The existence of a prior conviction is a determination that may be found by

the district court. Gibson, 434 F.3d at 1247. For purposes of sentencing, the

district court’s factual findings “may be based on, among other things, evidence

heard during trial, undisputed statements in the PSI, or evidence presented during

the sentencing hearing.” United States v. Ndiaye, 434 F.3d 1270, 1300 (11th Cir.),

cert. denied, 127 S. Ct. 128 (2006). If a defendant, however, challenges one of the

bases of his sentence as set forth in the PSI, the government bears the burden of

establishing the disputed fact by a preponderance of the evidence. Id. Further, “[a]

court may consider any information (including hearsay), regardless of its

admissibility at trial, in determining whether factors exist that would enhance a

defendant’s sentence, provided that the information is sufficiently reliable.”

United States v. Wilson, 183 F.3d 1291, 1301 (11th Cir. 1999) (finding no error

where the district court established the fact of conviction by relying on a PSI, on-

the-record statements of a probation officer, and notes of another probation officer

who had reviewed the municipal court records).

      In assessing whether a prior conviction was for a crime of violence, the

district court focuses on the fact of conviction and the statutory elements of that



                                            6
conviction. See Gibson, 434 F.3d at 1247 (considering whether prior convictions

were controlled substance offenses under § 4B1.1). “A district court only may

inquire into the conduct surrounding a conviction if ambiguities in the judgment

make the crime of violence determination impossible from the face of the judgment

itself.” Id. at 1248 (quoting Spell, 44 F.3d at 939). As Holman concedes, we have

held that carrying a concealed firearm in violation of Florida law constitutes a

crime of violence for purposes of the career offender classification. United States

v. Gilbert, 138 F.3d 1371, 1372 (11th Cir. 1998).

      Holman challenges the fact of conviction by asserting the ambiguities of the

judgment render it unclear whether he was convicted for a probation violation or

for carrying a concealed firearm. Holman’s reliance on Shepard v. United States,

125 S. Ct. 1254, 1263 (2005), and its progeny, therefore, is misplaced because the

restrictions apply only to the “sources a sentencing court may consider to

determine the character of a prior conviction under the ACCA [Armed Career

Criminal Act],” not to a determination regarding the fact of a prior conviction.

United States v. Cantellano, 430 F.3d 1142, 1147 (11th Cir. 2005) (noting that

“[t]he issue in Shepard was whether the Armed Career Criminal Act permitted a

sentencing court to consider police reports and complaint applications to establish

that prior convictions for burglary were violent felonies,” a finding about the



                                          7
character of the conviction). Once Holman objected to the finding in the PSI that

he had a prior conviction for carrying a concealed firearm, the Government could

use any reliable evidence to establish the disputed fact by a preponderance of the

evidence. See Ndiaye, 434 F.3d at 1300.

       To prove the fact of conviction, the Government submitted the judgment of

conviction, which listed the crime of conviction as “(VOP) CCF,” the offense

statute as Fla. Stat. § 790.01(2), and the offense degree as a third degree felony.

The statute cited in the judgment of conviction criminalizes carrying a concealed

firearm as a third-degree felony. Fla. Stat. § 790.01(2). The Government also

submitted an exhibit which contained numerous computer printouts from the state

court regarding the 1993 docket number referenced in the judgment of conviction.1

The probation officer, Kito Bess, testified regarding the content of the documents.

At one point he indicated the 1997 judgment means Holman was found guilty of a

probation violation for carrying a concealed weapon at that time. Elsewhere in his

testimony, however, Bess indicated that the conduct of carrying a concealed




       1
         Although Holman challenges the authenticity of the Government’s documents and the
weight afforded the documents by the district court because they were not certified, we decline
to consider this argument because Holman raised it for the first time on appeal in the reply brief.
See United States v. Whitesell, 314 F.3d 1251, 1256 (11th Cir. 2002) (explaining this Court
declines to consider issues raised for the first time in a reply brief).

                                                 8
firearm occurred in 1993, and Holman received a sentence of probation for that

offense.

      The district court did not clearly err in finding that the Government proved

by a preponderance of the evidence that Holman had a conviction for carrying a

concealed firearm. First, the judgment of conviction referenced the Florida statute

pertaining to carrying a concealed firearm. Next, despite the ambiguities in Bess’s

testimony, the documents themselves can be interpreted to support a conclusion

that Holman pled guilty to carrying a concealed firearm in 1994, but adjudication

was withheld when the state court sentenced him to 18 months of probation.

Further, the state court documents could be reasonably interpreted to show that in

1997, when Holman violated his probation for a second time, the state court

revoked the probation, sentenced him to 90 days’ imprisonment, and no longer

withheld adjudication on the original offense of carrying a concealed firearm.

Based on this evidence, the district court did not clearly err in finding the

Government had proven by a preponderance of the evidence that Holman had a

prior conviction for carrying a concealed firearm.

      Having found that Holman’s prior conviction was for carrying a concealed

firearm, the district court did not err in finding that his prior conviction qualified as

a crime of violence under U.S.S.G. § 4B1.2. Based on this prior conviction and



                                            9
Holman’s undisputed prior conviction for possession of cocaine with intent to

distribute, a controlled substances offense, the district court did not err in

classifying Holman as a career offender pursuant to § 4B1.1.2 Accordingly, we

affirm Holman’s 189-month sentence.

       AFFIRMED.




       2
          Holman’s contention the district court improperly expanded the record on appeal when
it granted the Government’s motion to supplement the record is meritless because the documents
in the supplemental record were in fact supplied to the district court prior to sentencing and
subsequently admitted as exhibits during sentencing. See Fed. R. App. P. 10(e)(2) (stating if
anything material is omitted from the record on appeal by error or accident, the district court
may correct the omission and supplement the record).

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