                                                                                      PUBLISH

                 IN THE UNITED STATES COURT OF APPEALS
                        FOR THE ELEVENTH CIRCUIT

                            -------------------------------------------
                                         No. 94-6984
                           --------------------------------------------
                                                                                    FILED
                                                                          U.S. COURT OF APPEALS
                            D. C. Docket No. CR-94-92-N                     ELEVENTH CIRCUIT
                                                                                 1/06/99
                                                                             THOMAS K. KAHN
                                                                                  CLERK
UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

      versus


PATRICK LAMAR HUMPHREY,

                                                              Defendant-Appellant.



                 ----------------------------------------------------------------
                    Appeal from the United States District Court
                           for the Middle District of Alabama
                 ----------------------------------------------------------------
                                     (January 6, 1999)


Before EDMONDSON and BIRCH, Circuit Judges, and MORAN*, Senior
District Judge.


______________
*    Honorable James B. Moran, Senior U.S. District Judge for the
     Northern District of Illinois, sitting by designation.




EDMONDSON, Circuit Judge:
   Appellant, Patrick L. Humphrey, argues on appe


district court failed to meet the requirements of


when accepting his guilty plea.   We see no plain e


affirm.




                Background




   Humphrey was charged with one count of posse


base with intent to distribute, in violation of 2


and one count of using and carrying a firearm


trafficking crime, in violation of 18 U.S.C. § 924(


pled guilty to both counts.
                      2
     Before accepting Humphrey’s plea, the district


Humphrey in the dialogue required by Fed. R. Crim.


attorney was present.       The district court judge in


Humphrey of the minimum and maximum penal


count but did not inform Humphrey that the sent

                      1
served consecutively.


 1
  The following exchange took place at the
Rule 11 proceeding:
     The Court: Do you understand that the
maximum possible penalty under Count
one is a fine of not more than two
million dollars, or twice the gross loss to
a victim or twice the gross gain to a
defendant, whichever is greater; a term
of imprisonment of not less than five
years and not more than forty years, or
both fine and imprisonment; a period of
                        3
not less than four years of supervised
release.   The Court would also be required
to require you to pay an assessment fee
of fifty dollars on this Count.   If there is
any victim, the Court could order [you] to
make restitution to any victim.
   Under Count two you could be assessed
a fine of not more than two hundred
and fifty thousand dollars or twice the
gross loss to the victim or twice the gross
gain to the defendant, whichever is
greater.   There is a mandatory five-year
sentence as to Count two.     You could be
fined and have the mandatory sentence
imposed.   And there is a period of not
more than three years of supervised
release for this offense.   The Court could
require you to make restitution to a
victim.    The Court would also have to
impose a fifty-dollar assessment as to
this second count.
   Now, both of these counts are what
                       4
   Later, Humphrey was sentenced to five years


imprisonment on each count, to be served conse


appeal, Humphrey argues that the Rule 11 proceedin


because the district court judge did not tell him th


are known as guidelines cases.   Have you
had any explanation as to what a
guidelines case means.


   (Discussion between defendant and
defense attorney).


   Defendant: Yes, sir.


   . . . .


   The Court: Do you understand all of
these maximum possible penalties?


   Defendant: Yes.
                      5
sentences had to be served consecutively. Humphr


this argument to the district court.




                  Discussion




   We have written that a Rule 11 proceeding mus


things. First, the proceeding must ensure the guil


of coercion. Second, the proceeding must make su


defendant understands the charges against him.


proceeding must confirm that the defendant is a


consequences of his guilty plea.   See United States


F.2d 665, 668 (11th Cir. 1992).
                        6
   Humphrey says his Rule 11 hearing did not ensur


aware of the consequences of his guilty plea becau


court judge did not say that the sentence for the


must be served consecutively to the sentence for


possession count.      Humphrey relies on our decisio


States v. Siegel, 102 F.3d 477 (11th Cir. 1996). Siegel


court must advise a defendant of the maximum


“mandatory nature” of the penalties associated


to satisfy Rule 11.   102 F.3d at 482.   Humphrey’s cla


failing to tell him about the consecutive nature


sentences -- the district court violated Rule 11 beca




                         7
told the mandatory nature of the penalties asso


guilty pleas.


     The government argues that the requirement


were met by informing Humphrey of the minim


maximum penalties for each count.            Nothing in


according to the government, explicitly requires


defendant about the consecutive nature of multi


Other circuits appear to agree -- in varying degr

                                    2
government’s general position.          Also, a Fifth C


 2
  See, e.g., United States v. Burney, 75 F.3d
442, 445 (8th Cir. 1996) (no requirement
to tell defendant about mandatory
consecutive sentences); United States v.
Ospina, 18 F.3d 1332, 1334 (6th Cir. 1994)
                       8
that is one of our precedents suggests -- but does


(same); see also Faulisi v. Daggett, 527
F.2d 305, 309 (7th Cir. 1975) (no
requirement to tell defendant that
federal sentence may, at district court’s
discretion, run consecutively to state
sentence); Wall v. United States, 500 F.2d
38, 39 (10th Cir. 1974) (no requirement to
tell defendant about possible consecutive
sentences if sentences are within
maximum sentence stated at Rule 11
hearing); Paradiso v. United States, 482
F.2d 409, 415 (3rd Cir. 1973) (no
requirement to inform defendant that
multiple sentences might, at discretion
of district court, be served consecutively);
United States v. Vermeulen, 436 F.2d 72,
75 (2d Cir. 1970) (same).   But see United
States v. Neely, 38 F.3d 458, 460 (9th Cir.
1993) (defendant must be told that his
federal sentence must run consecutively
to state sentence).
                      9
the result advocated by the government. See Uni


Saldana, 505 F.2d 628, 628 (5th Cir. 1974) (no vi


when district court fails to tell defendant that s


to be imposed would be consecutive to sentence he


serving).   The government also points out that H


to object to later statements, informing Humphr


would face consecutive sentences, made in the pr


investigation report and at the sentencing hea


   The appropriate standard of review, given Hu


failure to object in the district court to the cons


sentences, is plain error. See Fed. R. Crim. P. 52(b


v. Quinones, 97 F.3d 473, 475 (11th Cir. 1996). “No p
                      10
principle is more familiar . . . than that a const


or a right of any other sort, may be forfeited in


well as civil cases by the failure to make timely a


right before a tribunal having jurisdiction to de


United States v. Olano, 113 S. Ct. 1770, 1776 (1993) (i


quotation marks and citations omitted).         An exc


rule is plain error review, codified in Fed. R. Crim


our power to review for plain error is “limited”


“circumscribed.” Olano, 113 S. Ct. at 1776.


     Four requirements must be met before we can

                                  3
district court for plain error.       One of the four r


 3
  First, there must be an error.      Second,
                      11
that the error must be “plain.” Id. at 1777. A pl


an error that is “obvious” and is “clear under cur


     No Supreme Court decision squarely supports


claim. And other circuits -- if we read the case la


favorably to Humphrey -- are split on Humphrey’s

                      4
similar arguments.             Also, we have never resolve




the error must be plain.          Third, the error
must affect substantial rights of the
defendant.    Fourth, the error must
seriously affect the fairness, integrity,
or public reputation of a judicial
proceeding.   Olano, 113 S. Ct. at 1776.     We
address only the second requirement in
today’s opinion.

 4
  See supra note 2.
                          12
of these circumstances point to no plain error

                5
     In Siegel,     the district court abused its discre


 5
  The Court, in Olano, specifically declined
to address “the special case where the
error was unclear at the time of trial
but becomes clear on appeal because the
applicable law has been clarified.”       113 S. Ct.
at 1777.    After Olano, we have
considered decisions made between the
alleged error of the district court and the
appeal when deciding if an error is
plain. See United States v. Antonietti, 86
F.3d 206, 208-09 (11th Cir. 1995) (sentence
based on definition of “marijuana
seedling,” when definition changed in
defendant’s favor after sentencing, is
plain error) (dicta or unclear
alternative holding); United States v.
Walker, 59 F.3d 1196, 1198 (11th Cir. 1995)
(conviction based on a statute later
ruled unconstitutional after defendant’s
                          13
failing to inform the defendant, among other th


sentences would have to be served consecutively.


however, treated all the facts before it as mater

           6
decision.      At most, Siegel decided that -- when a di



trial is plain error).        We will consider
Siegel.

 6
  The Siegel court took into account all of
these facts:
          It is undisputed that neither
     the district court nor the
     government informed Siegel
     during the Rule 11 proceedings of the
     twenty-year maximum sentences
     that he could receive on Counts
     Four, Five, and Six.     Moreover, it is
     uncontroverted that neither the
     district court nor the government
     advised Siegel that he would be
                         14
does not inform the defendant of the maximum


associated with three counts, of the mandatory m


sentences associated with two counts, and of the


nature of a sentence associated with one count




   required to serve a five-year
   mandatory minimum prison
   sentence if he pled guilty to the
   offense charged in Count Seven.
   Further it is undisputed that the
   district court failed to advise
   Siegel that if he pled guilty to Count
   Eight he would be required to serve
   a twenty-year mandatory
   minimum sentence, to be served
   consecutively to the sentences
   imposed on Counts One through
   Seven.
Siegel, 102 F.3d at 482.
                      15
collectively amount to reversible error. Siegel di


as Humphrey insists it did decide -- that each one


standing alone, would justify reversing the distr


more specific, the Siegel court did not decide that


like those in the present case (involving manda


consecutive sentences only) amounted to revers


Because the Siegel case is not materially similar


case, no plain error based on Siegel is present in


   Without precedent directly resolving Humphre


claim, we conclude the district court’s alleged err


“obvious” or “clear under current law.” See Unite


Thompson, 82 F.3d 849, 856 (9th Cir. 1996) (“Because
                     16
split, the lack of controlling authority, and the fa


at least some room for doubt about the outcome o


cannot brand the court’s failure to exclude the ev


error’ ”) (footnote omitted). The error in this ca


an error), therefore, is not plain. See Olano, 113 S


Without a “plain” error, we lack authority to reverse the district

court. See id. We express no view as to whether the district

court committed an error other than a plain error.

     AFFIRMED.




                                  17
