              Case: 13-12980    Date Filed: 04/18/2014   Page: 1 of 8


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-12980
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 8:11-cr-00067-SCB-TGW-1


UNITED STATES OF AMERICA

                                                                  Plaintiff-Appellee,

                                      versus


PAUL GREGORY WILES,

                                                              Defendant-Appellant.

                         __________________________

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

                                 (April 18, 2014)

Before HULL, MARCUS, and JORDAN, Circuit Judges.

PER CURIAM:

      Paul Gregory Wiles appeals his convictions after pleading guilty to

possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1);
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conspiracy to possess methamphetamine with the intent to distribute, in violation

of 21 U.S.C. § 841(a)(1); and possession of a firearm in furtherance of a drug

trafficking crime, in violation of 18 U.S.C. § 924(c). On appeal, Mr. Wiles raises

three issues: an ineffective assistance of counsel claim related to his classification

as an armed career criminal; a challenge under Fed. R. Crim. P. 11(b)(3) to the

magistrate judge’s finding of a sufficient factual basis for his guilty plea to the

third count; and a challenge under Fed. R. Crim. P. 11(c)(1) to the magistrate

judge’s involvement during his plea hearing. We affirm.

                                          I

      After providing notice of his intent to plead guilty, Mr. Wiles consented to

having a magistrate judge conduct the change of plea hearing. At that hearing, the

magistrate judge read the three counts referenced above, and Mr. Wiles pled guilty

to each of them. Mr. Wiles admitted that he was a convicted felon, but, for

purposes relevant to sentencing, only admitted to having one prior felony

conviction. Mr. Wiles also admitted to possessing and selling methamphetamine,

possessing a firearm in furtherance thereof, and selling firearms and

methamphetamine together. After the magistrate judge’s review and explanation,

Mr. Wiles indicated he understood all of the rights he was giving up by pleading

guilty. Mr. Wiles also stated that he had discussed the case with his attorney, that




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his attorney had explained the charges to him, and that he was satisfied with his

attorney’s representation.

      The magistrate judge also asked Mr. Wiles and his attorney about his

position concerning the applicability of the 15-year minimum mandatory sentence

to Mr. Wiles as an armed career criminal under the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e). Mr. Wiles’ attorney responded that he did not

think the sentence applied to Mr. Wiles, but he had put him on notice “in the

abundance of caution.” D.E. 45 at 21. The magistrate judge then explained to Mr.

Wiles that he faced a minimum mandatory sentence of 15 years if he had three

predicate drug felonies or violent crimes committed on different occasions. Mr.

Wiles acknowledged that he understood.

      Finally, the magistrate judge asked about whether Mr. Wiles was offered a

plea agreement. Mr. Wiles’ attorney indicated that Mr. Wiles did not accept a plea

agreement because, though it would have dismissed the second count, it did not

affect the calculation of his sentence under the guidelines and would have limited

his right to appeal. The magistrate judge then asked Mr. Wiles if he wanted to

think about going forward without the plea agreement. After Mr. Wiles replied

“no, my head’s going all over the place,” the magistrate judge reiterated his

attorney’s statements by telling Mr. Wiles: “he said two things. One is, that it

really doesn’t give you much benefit, if any, I think is the way he put it. And that’s


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not uncommon because most of what the Government offers in their plea

agreement you can get without it. And secondly, you limit very significantly your

right to appeal.” Id. at 29-30. Mr. Wiles acknowledged that he was pleading

guilty freely and voluntarily.

      The magistrate judge recommended that the district court accept Mr. Wiles’

guilty pleas because the offenses charged in the indictment were supported by an

independent factual basis and because Mr. Wiles’ guilty pleas were knowing and

voluntary. Mr. Wiles did not file any objections to the magistrate judge’s report

and recommendation, and the district court adopted it, adjudicating Mr. Wiles

guilty of the three counts.

      The district court sentenced Mr. Wiles to imprisonment for 240 months in

total. At the sentencing hearing, the district court found that Mr. Wiles had four

predicate offenses under the ACCA. Mr. Wiles expressed concern to the district

court about the applicability of the ACCA, and indicated that, in pleading guilty,

he relied on his attorney’s advice that it would not apply. Mr. Wiles then requested

a trial, which the district court denied. Though the district court had discretion

under the advisory guidelines to impose a sentence of 188-235 months for the first

and second counts, it varied downward and sentenced Mr. Wiles to the mandatory

statutory minimum—180 months—for those counts, to run concurrently.             Mr.




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Wiles also received a 60-month mandatory minimum sentence for the third count,

to run consecutively.

      Mr. Wiles subsequently filed a motion to vacate under 28 U.S.C. § 2255,

raising nine ineffective assistance of counsel claims. One of his claims concerned

his lawyer’s failure to file an appeal after Mr. Wiles instructed him to. In granting

his § 2255 motion on that claim, the district court vacated the judgment and

sentence, and then re-imposed the same sentence, in order to allow Mr. Wiles to

appeal, see D.E. 49 at 2 (citing United States v. Phillips, 225 F.3d 1198, 1201 (11th

Cir. 2000)), but did not address his other ineffective assistance of counsel claims.

Mr. Wiles now appeals, raising only one of the nine ineffective assistance of

counsel claims he raised below and two challenges under Rule 11.

                                          II

      With regard to Mr. Wiles’ ineffective assistance of counsel claim, “it is well

settled law in this circuit that a claim of ineffective assistance of counsel cannot be

considered on direct appeal if the claims were not first raised before in the district

court and if there has been no opportunity to develop a record of evidence relevant

to the merits of the claim.” United States v. Franklin, 694 F.3d 1, 8 (11th Cir.

2012). See also United States v. Patterson, 595 F.3d 1324, 1328 (11th Cir. 2010)

(explaining that a § 2255 motion is preferable to raise an ineffective assistance of




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counsel claim “even if the record contains some indication of deficiencies of

counsel’s performance”).

      In granting Mr. Wiles’ § 2255 motion, the district court specifically

explained it was not deciding the remaining ineffective assistance of counsel

claims. The record here is not sufficiently developed to review those claims, and

we disagree with Mr. Wiles’ conclusory arguments suggesting otherwise. Given

that the district court vacated its original judgment and imposed an identical

sentence in a new judgment, Mr. Wiles may raise his ineffective assistance of

counsel claims and develop a sufficient record through a properly-filed § 2255

motion. See Stewart v. United States, 646 F.3d 856, 859 (11th Cir. 2011) (citing

Johnson v. United States, 544 U.S. 295 (2005)).

                                          III

      With regard to Mr. Wiles’ remaining two challenges concerning the

magistrate judge’s findings and involvement during the plea colloquy, we conclude

Mr. Wiles has waived his right to appellate review of these claims because he did

not file any objection to the magistrate judge’s report and recommendation. See

Fed. R. Crim. P. 59(b)(2) (“Failure to object . . . waives a party’s right to review.”).

See also United States v. Garcia-Sandobal, 703 F.3d 1278, 1282-83 (11th Cir.

2013). Nevertheless, even if we were to review for plain error, see United States v.

Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003) (holding that failure to object to a


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Rule 11 violation in the district court results in plain error review), we find no

reversible error.

      Mr. Wiles admitted that his possession of a firearm was in furtherance of the

methamphetamine offense and that he sold the firearms and methamphetamine

together. This provided a sufficient factual basis for his guilty plea to possessing a

firearm in furtherance of a drug trafficking crime, and does not constitute plain

error. See United States v. Timmons, 283 F.3d 1246, 1252-54 (11th Cir. 2002)

(“there must be a showing of some nexus between the firearm and the drug selling

operation”).

      Also, though Rule 11(c)(1) provides that a “court must not participate” in

plea agreement discussions between the government and a defendant, the

magistrate judge’s discussion here did not violate this provision. The plea

negotiations had already ended due to Mr. Wiles’ rejection of the plea agreement,

and the magistrate judge’s questioning and comments were to ensure Mr. Wiles’

guilty plea was knowing and voluntary.         Mr. Wiles has not shown that his

discussion with the magistrate judge compelled him to plead guilty, even if, as he

contended during his sentencing hearing, his reliance on his attorney’s advice may

have influenced him to do so. Cf. United States v. Castro, 736 F.3d 1308, 1313-15

(11th Cir. 2013) (denying Rule 11 challenge because, although district court’s

comments plausibly may have compelled the defendant to plead guilty, it was


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equally plausible that the defendant pled guilty for other reasons, including a

shorter sentence). Thus, the magistrate judge’s comments do not constitute plain

error.

                                         IV

         We affirm Mr. Wiles’ convictions and sentence.

         AFFIRMED.




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