                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 09-12336                ELEVENTH CIRCUIT
                                                          DECEMBER 10, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                  D. C. Docket No. 08-80125-CR-DTKH

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

DANIEL YANES HERNANDEZ,

                                                         Defendant-Appellant.


                       ________________________

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

                           (December 10, 2009)

Before BLACK, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
      Daniel Yanes Hernandez appeals his conviction and sentence for using with

intent to defraud one or more access devices, in violation of 18 U.S.C.

§ 1029(a)(1). He raises four arguments on appeal, namely whether (1) the

magistrate judge plainly erred in accepting his guilty plea because the judge failed

ensure Hernandez understood the consequences of his plea as required by Rule 11

of the Federal Rules of Criminal Procedure; (2) the district court clearly erred in

declining to apply a minor-role reduction at sentencing, pursuant to U.S.S.G.

§ 3B1.2(b), because Hernandez was neither an organizer nor a major participant in

the scheme; (3) the district court clearly erred in applying a two-level enhancement

at sentencing, pursuant to U.S.S.G. § 2B1.1(b)(2)(A)(i), based on the number of

victims involved in the offense, because evidence concerning the number of

victims attributed to Hernandez was speculative; and (4) his sentence was

substantively unreasonable.

                                           I.

      Hernandez contends his conviction and sentence must be vacated because

they were obtained pursuant to an invalid guilty plea. When a defendant fails to

challenge the validity of his guilty plea before the district court, we review for

plain error. United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003).




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      “Rule 11 imposes upon a district court the obligation and responsibility to

conduct an inquiry into whether the defendant makes a knowing and voluntary

guilty plea.” United States v. Hernandez-Fraire, 208 F.3d 945, 949 (11th Cir.

2000). “When accepting a guilty plea, a court must address three core concerns

underlying Rule 11: (1) the guilty plea must be free from coercion; (2) the

defendant must understand the nature of the charges; and (3) the defendant must

know and understand the consequences of his guilty plea.” Id. (quotations

omitted).

      The record reflects the magistrate judge fully complied with Rule 11 and the

three core concerns were addressed. The magistrate judge ensured Hernandez’s

plea was free from coercion when she elicited from Hernandez that (1) his plea was

made freely and voluntarily; (2) no one had promised him anything not contained

in the plea agreement; and (3) he had not been threatened, coerced, forced into

pleading guilty. The magistrate judge further ensured Hernandez understood the

nature of the charges against him by finding him competent to understand the

proceedings and having the Government go over the facts of the fraud and the

elements of the crime. In addition, the magistrate judge ensured Hernandez

understood the consequences of pleading guilty. The magistrate judge addressed

the constitutional rights Hernandez was relinquishing by pleading guilty, went over



                                          3
the maximum penalties, noted an advisory Guidelines range would be calculated

pursuant to the Sentencing Guidelines, and informed Hernandez the district court

could impose a sentence higher or lower than the applicable Guidelines range, but

not greater than the statutory maximum sentence.

      Contrary to Hernandez’s argument, the magistrate judge was not obligated

under Rule 11 to do any more than this. As to his argument the magistrate judge

failed to explain the difference between a magistrate judge and an Article III judge

or the significance of having magistrate judge take his plea, there is no Supreme

Court or Eleventh Circuit case holding such an explanation is required, and, thus,

there can be no plain error in this regard. See United States v. Aguillard, 217 F.3d

1319, 1321 (11th Cir. 2000) (“[W]here neither the Supreme Court nor this Court

has ever resolved an issue, and other circuits are split on it, there can be no plain

error in regard to that issue.”). Regarding his arguments the magistrate judge only

recited the rights at stake and failed to inquire as to his understanding of the

consequences of his plea or the meaning of particular “constitutional terms” used,

there is no dispute the magistrate judge apprised Hernandez of all the rights

enumerated in Rule 11, and the record shows Hernandez confirmed his

understanding of these rights. See United States v. Downs-Morgan, 765 F.2d 1534,

1537 (11th Cir. 1985) (stating “[t]he trial judge is obligated . . . to personally



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disclose only those consequences of a guilty plea specifically set forth in [Rule

11]”). As to Hernandez’s argument the magistrate judge failed to ascertain

whether his attorney interpreted the plea agreement from English into Spanish

properly or was qualified to do so, Hernandez has not pointed to any facts

demonstrating he failed to understand the terms of his plea agreement. Cf.

Hernandez-Fraire, 208 F.3d at 951 (finding plain error where the district court

failed to identify enumerated rights and the record of the plea hearing showed that

defendant did not understand his rights as he stated explicitly, “I don’t know what

my rights are”). With respect to his argument the magistrate judge violated Rule

11 by failing to explain the Guidelines, the difference between the Guidelines and

the statutory maximum, or the application of possible enhancements to his

Guidelines calculations, the magistrate judge was only required to impress upon

Hernandez the importance the Guidelines might play at sentencing, which she did.

See United States v. Mosley, 173 F.3d 1318, 1328 (11th Cir. 1999) (stating a

district court complies with Rule 11 when it elicits a defendant is aware of the

Guidelines and the defendant has discussed the effect of the Guidelines with his

attorney).

      To the extent Hernandez asserts the irregularities with his sentence appeal

waiver rendered his guilty plea invalid, his argument is without merit. The record



                                          5
shows the magistrate judge made an explicit finding the waiver was knowingly and

voluntarily made after properly advising Hernandez regarding the waiver.

Moreover, Hernandez has not shown that, but for his allegations of error, he would

not have entered his guilty plea. See United States v. Dominguez Benitez, 124 S.

Ct. 2333, 2340 (2004) (“[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.”). Rather, the record shows Hernandez received substantial

benefits in exchange for his guilty plea, in that the Government dismissed the

conspiracy count against him and agreed not to oppose his request for a sentence at

the low end of his Guidelines range. Thus, Hernandez’s plea was valid, and we

affirm his conviction.

                                            II.

       Hernandez next contends the district court erred in failing to grant him a

minor-role reduction because he was not a major participant in the credit card fraud

scheme.1 We review a district court’s decision whether to grant a minor-role

reduction for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir.

1999) (en banc).


       1
         The Government concedes Hernandez’s sentence was the result of an upward variance
and declines to enforce the appeal waiver against Hernandez.

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      A district court is authorized to reduce a defendant’s offense level by two if

the defendant establishes he was a “minor participant” in the crime by a

preponderance of the evidence. U.S.S.G. § 3B1.2(b); De Varon, 175 F.3d at 939.

A minor participant is one “who is less culpable than most other participants, but

whose role could not be described as minimal.” U.S.S.G. § 3B1.2(b), comment.

(n.5). For a sentencing court to determine whether to grant a minor-role reduction,

it considers two principles. De Varon, 175 F.3d at 940. First, the court must

measure the defendant’s role against the relevant conduct for which he is being

held accountable. Id. “Only if the defendant can establish that [he] played a

relatively minor role in the conduct for which [he] has already been held

accountable–not a minor role in any larger criminal conspiracy–should the district

court grant” a minor-role reduction. Id. at 944. The second prong of the

minor-role-reduction analysis permits a district court, “where the record evidence

is sufficient, . . . [to] measure the defendant’s conduct against that of other

participants in the criminal scheme attributed to the defendant.” Id. at 934.

      The district court did not clearly err in finding Hernandez was not entitled to

a minor-role reduction. The district court found the amount of loss attributable to

Hernandez was a “significant figure” “generated over a significant period of time,”

and “put him in league with some of [his codefendants].” The district court further



                                            7
found Hernandez had completed over 30 fraudulent transactions, which spanned

the full 6 months of his involvement in the scheme. These findings are supported

by the record, which shows Hernandez participated in over 30 transactions and was

responsible for in $58,917 losses, an amount which was substantially less than 2 of

his codefendants and substantially greater than 2 others. Thus, Hernandez played

an important role in his relevant conduct, and he was not less culpable than most

other participants in the scheme. Accordingly, we affirm as to this issue.

                                          III.

      Hernandez asserts the district court erred in applying a two-level

enhancement per U.S.S.G. § 2B1.1(b)(2)(A)(i) because there was no evidence or

testimony supporting the contention he was responsible for ten or more victims.

The Government concedes the district court erred in applying the two-level

enhancement because the court failed to connect the victims to the actual losses

they sustained.

      Under section 2B1.1 of the Sentencing Guidelines, if the offense involved

ten or more victims, the offense level is increased by two. “Victim” is defined as

“any person who sustained any part of the actual loss,” and “person” includes

individuals and corporations. U.S.S.G. § 2B1.1, comment. (n.1). The number of

victims depends on the loss calculation, specifically the actual loss, and, thus, a



                                           8
sentencing court must connect the number of victims to the actual loss. See United

States v. Foley, 508 F.3d 627, 634 (11th Cir. 2007) (holding the district court erred

in calculating the number of victims because it did not make an independent

finding of the loss amount and did not connect the number of victims to the loss

calculation).

      The court identified the loss attributed to Hernandez as $58,917 for purposes

of U.S.S.G. § 2B1.1(b)(1) and found there were more than ten victims based on

“the number of transactions” and the practices of credit card companies in

allocating losses on verifiable and non-verifiable transactions. However, the court

did not make any effort to connect the number of victims to the $58,917 loss

calculation. Thus, the district court clearly erred in its finding of the number of

victims. As the Government points out, the district court’s error in calculating the

number of victims was not harmless. See Fed. R. Crim. P. 52(a) (stating “[a]ny

error, defect, irregularity, or variance that does not affect substantial rights must be

disregarded”). If the district court had not applied the 2-level increase, per

§ 2B1.1(b)(2)(A)(i), for 10 or more victims, Hernandez’s offense level would have

been 9 and his corresponding Guidelines range would have been 8 to 14 months,

rather than 12 to 18 months. Notably, there is no indication in the record the

district court would have imposed the same sentence regardless of the



                                            9
enhancement’s application. See United States v. Keene, 470 F.3d at 1347, 1349

(11th Cir. 2006) (holding a misapplication of the Guidelines is harmless error when

the ultimate sentence is reasonable in view of the § 3553(a) factors and the district

court states it would have imposed the same sentence regardless of its application

of the relevant Guidelines provision).

      Accordingly, we vacate and remand as to this issue. On remand, the district

court should reconsider its application of § 2B1.1(b)(2)(A)(i) and, in doing so,

connect the victims to the actual losses they sustained. Because remand is

necessary for the district court to correct its procedural error with respect to its

application of § 2B1.1(b)(2)(A)(i), we decline to address the substantive

reasonableness of Hernandez’s sentence.

      AFFIRMED in part; VACATED and REMANDED in part.




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