           Case: 13-14131   Date Filed: 08/25/2014   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-14131
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 6:13-cr-00038-GKS-GJK-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

RICHARD MIDDLETON,
a.k.a. Stanley Holmes,
a.k.a. Melvin Drake,
a.k.a. Delroy Stevens,
a.k.a. Richard Kelly,

                                                         Defendant-Appellant.

                      ________________________

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

                            (August 25, 2014)

Before WILSON, PRYOR and ANDERSON, Circuit Judges.
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PER CURIAM:

      Richard Middleton appeals his convictions and sentence of 70 months of

imprisonment, following his pleas of guilty to possessing access device-making

equipment, 18 U.S.C. § 1029(a)(4), (c)(1)(A)(ii), and to possessing a document-

making implement with the intent to produce a false identification document, id.

§ 1028(a)(5), (b)(1)(C). Middleton argues, for the first time, that his pleas were

not entered knowingly and voluntarily; the district court failed to allow him to

allocute before imposing his sentence; and the district court failed to solicit

objections after imposing the sentence. Middleton also argues that the district

court miscalculated his sentence and that his sentence is unreasonable. We affirm

Middleton’s convictions, but because he was not afforded an opportunity to

allocute, we vacate Middleton’s sentence and remand for resentencing. In the light

of our disposition, we need not address Middleton’s remaining arguments.

      Because Middleton failed to present to the district court his arguments about

the validity of his guilty pleas and his right to allocute, we review for plain error.

Before we can correct an error not presented to the district court, the defendant

must establish that an error occurred that was plain and that affected his substantial

rights. United States v. Perez, 661 F.3d 568, 583 (11th Cir. 2011). If those

elements are satisfied, we may exercise our discretion to correct the error if it

“seriously affected the fairness, integrity, or public reputation of a judicial


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proceeding.” Id.

      The district court did not plainly err by accepting Middleton’s pleas of

guilty. Middleton argues that the district court failed to comply with Federal Rule

of Criminal Procedure 11(b) to ensure that his guilty pleas were knowing and

voluntary, but the district court questioned Middleton to determine whether he

understood the crimes charged against him and the elements of those crimes; the

rights he was waiving by pleading guilty; and the penalties for his offenses. See

United States v. Rodriguez, 751 F.3d 1244, 1254 (11th Cir. 2014). Under further

questioning by the prosecutor, Middleton acknowledged that he was not coerced to

change his pleas to guilty and that the factual basis in his written plea agreement

was accurate. Middleton agreed to waive his right to appeal his sentence and

argues that the district court failed to explain adequately the consequences of his

waiver, but even if we were to assume that the district court plainly erred, that did

not affect Middleton’s substantial rights. See United States v. Rodriguez, 398 F.3d

1291, 1299 (11th Cir. 2005). Middleton has not been prejudiced because the

government waives enforcement of the waiver.

      Middleton is entitled to a new sentencing hearing because the district court

plainly erred by failing to give him an opportunity to allocute. The district court

failed, “before imposing sentence, . . . [to] address [Middleton] personally in order

to permit [him] to speak or present any information to mitigate the sentence.” Fed.


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R. Crim. P. 32(i)(4)(A). The district court invited Middleton to “place on the

record . . . anything [he wished] regarding the contents in the [presentence

investigation] report,” but Middleton was not allowed to “plead personally to the

court for leniency in his sentence by stating mitigating factors and to have that plea

considered by the court in determining the appropriate sentence,” United States v.

Tamayo, 80 F.3d 1514, 1518 (11th Cir. 1996).              The district court asked

Middleton’s attorney if there was “anything [he] wish[ed] to state at this time,” but

the inquiry directed “to counsel [did] not adequately protect [Middleton’s] right of

allocution.” Perez, 661 F.3d at 585; see Gordon v. United States, 518 F.3d 1291,

1299 (11th Cir. 2008). The failure to allow Middleton to allocute affected his

substantial rights because his sentence of 70 months exceeded the low end of his

advisory sentencing range of 63 months. See Perez, 661 F.3d at 586. And the

“denial of [Middleton’s] right to allocute affects the fairness, integrity, and public

reputation of judicial proceedings.” Id. (citing United States v. Prouty, 303 F.3d

1249, 1253 (11th Cir. 2002). We exercise our discretion to correct the error in

Middleton’s sentencing hearing because “[f]ailing to give a defendant the

opportunity to speak to the court directly when it might affect his sentence is

manifestly unjust.” Id. (quoting Prouty, 303 F.3d at 1253).

      The government argues that Middleton was given an “invitation to object to

his sentence before it was finalized,” but we disagree.           The district court


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announced Middleton’s sentence in futuristic terms by stating that it was “going to

sentence [Middleton] to 70 months,” but the district court also stated that it was

imposing 3 years of supervised release, a $200 special assessment, and a forfeiture

of his access devices. The district court did not revisit the subject of Middleton’s

sentence and proceeded to ask Middleton if “there [was] anything [he]’d like to

state to the Court now that [he] [had] been sentenced.” Because the district court

failed to “clearly inform [Middleton] of his allocution rights” and to “issue[] [him]

a personal invitation to speak prior to sentencing,’” United States v. Gerrow, 232

F.3d 831, 833 (11th Cir. 2000) (quoting Green v. United States, 365 U.S. 301, 305,

81 S. Ct. 653, 655 (1961)), we must vacate his sentence and remand for the district

court to conduct a new sentencing hearing. During that hearing, the district court

must give Middleton an opportunity “to speak or present any information to

mitigate the sentence” before his sentence is imposed.           Fed. R. Crim. P.

32(i)(4)(A).

      We AFFIRM Middleton’s convictions, but we VACATE his sentence and

REMAND for resentencing in compliance with Rule 32(i)(4)(A).

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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