                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-11136                ELEVENTH CIRCUIT
                                                             OCTOBER 8, 2009
                          Non-Argument Calendar
                                                           THOMAS K. KAHN
                        ________________________
                                                                CLERK

                     D. C. Docket No. 08-00100-CR-CB

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

KENNETH MAURICE JOHNSON,
a.k.a. Randy Johnson,

                                                          Defendant-Appellant.


                        ________________________

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

                              (October 8, 2009)

Before HULL, PRYOR and FAY, Circuit Judges.

PER CURIAM:

     Kenneth Maurice Johnson appeals his convictions and sentence of 120
months of imprisonment for conspiracy to possess with intent to distribute cocaine

and possession of a firearm by a convicted felon. 18 U.S.C. § 922(g)(1); 21 U.S.C.

§ 846. Johnson challenges the denial of his motion to withdraw his guilty plea and,

for the first time on appeal, objects to the term of supervised release imposed for

his firearm offense. We affirm as to those issues, and we vacate and remand to

correct a clerical error.

                                I. BACKGROUND

       Travis Hill told officers of the Mobile Police Department that he had

purchased half of a kilogram of cocaine from Johnson over three years. Johnson

later agreed to sell Hill 250 grams of cocaine. Police arrested Johnson after a

controlled purchase in which he left five ounces of cocaine in the passenger side

floorboard of Hill’s vehicle. Officers later searched Johnson’s residence and

seized three plastic bags that each contained a half ounce of cocaine, a loaded

handgun, and a rifle.

       Johnson was charged in a four-count indictment for conspiracy to possess

with intent to distribute more than 500 grams of cocaine, 21 U.S.C. §§ 841(a)(1),

(b)(1)(B); possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1);

knowingly using, carrying, and possessing a firearm to traffic in drugs, id. §

924(c); and possession with intent to distribute five ounces of cocaine, 21 U.S.C. §



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841(a)(1). The government moved to enhance Johnson’s sentence with his prior

conviction for possessing cocaine. Id. § 851(a).

      Johnson agreed to plead guilty to the charges of conspiracy and possession

of a firearm as a convicted felon in exchange for the dismissal of the remaining

charges. The plea agreement stated that Johnson had discussed the charges and the

possible sentences with his attorney and he “under[stood] that no one [could]

predict with certainty what the sentencing range [would] be until after a pre-

sentence investigation [had] been completed and the [district] [c]ourt [had] ruled

on the results of that investigation.” The plea agreement also stated that a factual

resume was “incorporated by reference” and contained facts that the parties agreed

were “true and correct.” The factual resume stated that “Johnson admit[ted] that

the United States could prove his involvement beyond a reasonable doubt with a

kilogram of cocaine.”

      As part of the plea agreement, the government also agreed to move for

Johnson to receive a downward departure if he “provide[d] full, complete, truthful

and substantial” information that “result[ed] in substantial assistance.” The

government “specifically reserve[d] the right to make the decision relating to the

extent of any such departure request . . . based upon its evaluation of the nature and

extent of [Johnson’s] cooperation.” The plea agreement stated that the government



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“[made] no representation or promise with regard to the exact amount of reduction,

if any,” Johnson might receive.

      At the change of plea hearing, the district court told Johnson that he faced a

minimum sentence of 10 years of imprisonment for his conspiracy charge and

Johnson said he understood the penalty. Johnson verified that he had discussed the

factual resume with his attorney and the facts stated in the resume were true. The

district court accepted Johnson’s pleas of guilty.

      The presentence investigation report provided that Johnson had a base

offense level of 26, United States Sentencing Guideline § 2D1.1(c)(7) (Nov. 2007),

and he was accountable for 655.925 grams of cocaine. The report increased

Johnson’s base level by two points because he had possessed a dangerous weapon

in furtherance of his offense, id. § 2D1.1(b)(1), and reduced that level by three

points because he had accepted responsibility and timely entered pleas of guilty, id.

§ 3E1.1(a), (b). Because Johnson had a prior offense, the report listed a mandatory

minimum sentence of 10 years of imprisonment. Johnson did not object to the

report.

      Johnson moved to continue his sentencing hearing to try to provide

substantial assistance to the government, and the district court granted the motion.

Johnson later filed pro se a letter stating that he had fired his attorney; wished to



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withdraw his plea of guilt based on “insufficient counseling”; and objected to the

statement in the presentence report that he was accountable for 655 grams of

cocaine. After the district court allowed Johnson’s counsel to withdraw, the court

appointed a federal public defender to represent Johnson.

      Johnson moved to withdraw his guilty plea. Johnson argued that his pleas of

guilty were not made knowingly and voluntarily because counsel told Johnson that

he would not face the mandatory minimum sentence of ten years for his conspiracy

crime after he received a downward departure for substantial assistance. Johnson

argued that he would not have pleaded guilty if he had known the government had

to prove his offense involved 500 grams or more of cocaine and was not obligated

to move for a downward departure.

      The district court heard conflicting testimonies at the hearing of Johnson’s

motion to withdraw his guilty pleas. Johnson testified that his attorney, Dennis

Knizley, failed to discuss the plea agreement, instructed Johnson to respond

affirmatively to all questions asked by the district court, and told Johnson that he

would receive a sentence between two and five years of imprisonment for his

conspiracy charge. Knizley, on the other hand, testified that he had warned

Johnson that he would face a minimum of ten years of imprisonment because of

the large amount of cocaine and the government had discretion to decide whether



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to request a downward departure. Knizley testified that he had told Johnson the

“maximum that was going to be recommended by the United States Attorney’s

Office, if they were totally pleased with the cooperation, would be a 50-percent

deduction from the sentence.” Knizley also testified that the strategy approaching

trial and in negotiating a plea was to reduce Johnson’s sentence by distancing

Johnson from the guns and proving his offense involved less than 500 grams of

cocaine. Knizley testified that Johnson did not complain about the amount of

drugs until the government refused to move for a downward departure.

      The district court denied Johnson’s motion to withdraw his guilty plea. The

court credited Knizley’s testimony that Johnson knew he faced a minimum

sentence of ten years of imprisonment and understood the terms of his guilty plea.

The district court found that Johnson was a repeat offender who understood the

guilty plea process and suffered from “buyer’s remorse.”

      The district court proceeded to sentence Johnson and found that Johnson had

admitted that he was involved with 655 grams of cocaine. The court sentenced

Johnson to 120 months of imprisonment for his conspiracy charge and to a

concurrent 70-month term for his firearm offense followed by eight years of

supervised release for each charge. The court dismissed Johnson’s remaining

firearm and possession charges. The written judgment stated that Johnson received



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two concurrent sentences of 120 months of imprisonment followed by “supervised

release for a term of 8 years.”

                          II. STANDARDS OF REVIEW

      We review the denial of a motion to withdraw a guilty plea for an abuse of

discretion, and we will not reverse unless that decision is “arbitrary and

unreasonable.” United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006).

When a defendant fails to raise an objection in the district court, we review for

plain error. United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005). We

may address sua sponte a clerical error in a judgment. United States v.

Campos-Diaz, 472 F.3d 1278, 1280 (11th Cir. 2006).

                                  III. DISCUSSION

      Johnson raises two issues on appeal. Johnson challenges the denial of his

motion to withdraw his guilty pleas and the length of his term of supervised

release. We discuss those issues and then address a clerical error in the judgment.

      Johnson argues on two grounds that the district court erred when it denied

his motion to withdraw his guilty pleas. First, Johnson argues that his plea

colloquy was insufficient because neither the court or counsel told Johnson that the

government had to prove he had distributed 500 grams or more of cocaine for

Johnson to be subject to the mandatory minimum sentence of ten years. Second,



                                           7
Johnson argues that he is entitled to withdraw his plea because counsel failed to tell

him the government was not obligated to move for a downward departure.

Johnson’s arguments to set aside his pleas of guilty are unavailing. The district

court was entitled to credit Knizley’s testimony and to discredit Johnson’s

testimony. The record supports the finding that Johnson knew that his sentence

could be enhanced for involving more than 500 grams of cocaine. Johnson’s

indictment stated that he was “subject to the penalty provisions of Title 21, . . .

Section 841(b)(1)(B),” because “[t]he quantity involved “exceed[ed] 500 grams of

cocaine.” See United States v. Zerick, 963 F.2d 1487, 1489 (11th Cir. 1992)

(“When an indictment does allege that a particular quantity is involved, the effect

is only to put the defendant on notice that the enhanced penalty provisions of

Section 841(b) may apply.” (quoting United States v. Campuzano, 905 F.2d 677,

679 (2d Cir. 1990)). The factual resume stated that Johnson’s offense involved “a

kilogram of cocaine,” and Johnson verified during the plea colloquy that the facts

in the factual resume were true. See United States v. Medlock, 12 F.3d 185, 187

(11th Cir. 1994) (“There is a strong presumption that . . . statements [made by a

defendant] during [his guilty plea] colloquy are true.”). Johnson also knew from

the plea agreement and discussions with his attorney that he was not necessarily

entitled to a downward departure motion from the government. The district court



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did not abuse its discretion by denying Johnson’s motion to withdraw his pleas of

guilty.

          Johnson challenges for the first time on appeal his sentence to eight years of

supervised release for his firearm offense. This argument fails. Johnson cannot

establish that this error affected his substantial rights because he also faced an

eight-year term of supervised release for his conspiracy charge. See 18 U.S.C. §

3624(e).

          We notice a clerical error in Johnson’s sentence. The district court

sentenced Johnson to 70 months of imprisonment for his firearm charge, but the

written judgment states that he received a sentence of 120 months of

imprisonment. The oral pronouncement controls, see United States v. Bates, 213

F.3d 1336, 1340 (11th Cir. 2000), and we vacate the written judgment and remand

for the district court to enter a new judgment stating that Johnson received a

sentence of 70 months of imprisonment.

                                   IV. CONCLUSION

          We AFFIRM Johnson’s convictions and his sentence for his conspiracy

conviction. We VACATE the written order of judgment and REMAND with

instructions to correct a clerical error.




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