U.S. v. Brown, No. 08-17244.

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBirch
Citation586 F.3d 1342
PartiesUNITED STATES of America, Plaintiff-Appellee, v. William Eric BROWN, Defendant-Appellant.
Docket NumberNo. 08-17244.
Decision Date05 November 2009
586 F.3d 1342
UNITED STATES of America, Plaintiff-Appellee,
v.
William Eric BROWN, Defendant-Appellant.
No. 08-17244.
United States Court of Appeals, Eleventh Circuit.
November 5, 2009.

[586 F.3d 1344]

Kristen Gartman Rogers, Peter J. Madden and Carlos Alfredo Williams, Fed. Pub. Defenders, Mobile, AL, for Brown.

David Andrew Sigler, Steven E. Butler, Mobile, AL, for U.S.

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

Before DUBINA, Chief Judge, and BIRCH and SILER,* Circuit Judges.

BIRCH, Circuit Judge:


William Eric Brown appeals his conviction under 18 U.S.C. § 2250(a) for failing to register in accordance with the Sex Offender Registration and Notification Act ("SORNA"). Brown contends, for the first time on appeal, that the district court committed plain error during his Rule 11 colloquy when it erroneously stated his maximum term of supervised release. Additionally,

586 F.3d 1345

Brown challenges the validity and applicability of SORNA on various grounds. This case presents issues of first impression in our circuit involving application of SORNA. Upon careful consideration of the record and oral arguments, we AFFIRM.

I. BACKGROUND

Brown was convicted by North Carolina in November 1996 of indecent liberties with a minor. He signed a North Carolina Sex Offender Acknowledgment Form which required him to register after his release from prison. When Brown registered in June 1998 in North Carolina, he was told to notify North Carolina within 30 days of changing his address. In June 2007, Brown moved from North Carolina to Mobile, Alabama, where he resided until 12 June 2008 without registering his address in Alabama.

Brown was subsequently indicted for violating 18 U.S.C. § 2250(a), by knowingly failing to register and update his registration from June 2007 through 12 June 2008 in accordance with SORNA. Brown filed a pre-trial motion to dismiss the indictment challenging the validity and applicability of SORNA based on grounds of due process, implementation, notice, and the Commerce Clause. The court denied the motion.

In August 2008, Brown pled guilty as charged, conditioned upon his right to appeal the motion to dismiss the indictment. Both the written plea agreement and the district court during the guilty plea hearing mistakenly stated that Brown faced a maximum three-year term of supervised release. However, Brown's presentence investigation report ("PSI"), issued approximately six weeks before sentencing, correctly identified the possible supervised release term as being five years to life, pursuant to 18 U.S.C. § 3583(k). Brown did not file any written objections to the report.

At the sentencing hearing in December 2008, Brown's attorney indicated that he had received a copy of the PSI and discussed it with Brown. Brown himself acknowledged that he understood what was contained in the PSI. After Brown's attorney affirmed that he had no objections to the PSI, the district court adopted the PSI as published. The court ultimately sentenced Brown to 21 months of imprisonment followed by a life term of supervised release. Brown did not object to the life term of supervised release. This appeal followed.

II. DISCUSSION

A. Whether a Rule 11 Violation Invalidated Brown's Guilty Plea

Brown first contends that his guilty plea was unknowing and involuntary because the district court committed plain error when it informed him that he faced a maximum three-year term of supervised release. The government concedes error but contends that no prejudice has been shown.

Because Brown did not object to the Rule 11 colloquy in district court, we review for plain error. See United States v. Bejarano, 249 F.3d 1304, 1306 (11th Cir.2001) (per curiam). This requires Brown to show a clear error that prejudiced him by affecting his substantial rights. See id. In the context of a Rule 11 error, prejudice to the defendant means "a reasonable probability that, but for the error, he would not have entered the plea." United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 2340, 159 L.Ed.2d 157 (2004). We may consider the whole record when assessing whether a Rule 11 error affected Brown's substantial rights. See United States v. Vonn, 535

586 F.3d 1346

U.S. 55, 59, 122 S.Ct. 1043, 1046, 152 L.Ed.2d 90 (2002). Even if Brown carries his burden of establishing clear, prejudicial error, we may not remedy that error unless it "seriously affects the fairness, integrity or public reputation of judicial proceedings." Puckett v. United States, 556 U.S. ___, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009) (quotation marks, citation, and bracket omitted).

A guilty plea is knowingly and voluntarily made if the defendant enters his plea without coercion and understands the nature of the charges and the consequences of his plea. See United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005) (per curiam). The consequences of a guilty plea include "any maximum possible penalty, including imprisonment, fine, and term of supervised release[.]" Fed. R.Crim.P. 11(b)(1)(H).

Here, the plea agreement and the district court incorrectly advised Brown that the maximum term of supervised release was three years, instead of life. See 18 U.S.C. § 3583(k) (2009) (mandatory supervised release term for violating 18 U.S.C. § 2250 is five years to life). Thus, as the government concedes, the error in this case was plain. See United States v. Carey, 884 F.2d 547, 548 (11th Cir.1989) (per curiam) ("[I]t is clear that the district court erred in not informing appellant at the plea hearing that appellant, if sentenced to prison, would be subject to a term of supervised release.").

Nevertheless, Brown has not carried his burden of showing prejudice. In Bejarano, both the written plea agreement and the district court during the plea colloquy failed to inform Bejarano that his sentence would include a mandatory minimum term of five years of supervised release. See Bejarano, 249 F.3d at 1305-06. Instead, the plea agreement and the court only stated that his term of imprisonment would be "followed by a term of supervised release." Id. The PSI, however, correctly stated that Bejarano faced a statutory minimum term of five years of supervised release. See id. at 1306. Bejarano did not object to the PSI at sentencing. See id. Consequently, we concluded that Bejarano was not entitled to withdraw his guilty plea because "Bejarano's conduct indicates that his substantial rights were not affected by the district court's failure to inform him at his plea colloquy of the specific term of supervised release required by statute[.]" Id. at 1307.

Although the instant case differs from Bejarano in that Brown was informed of an incorrect term of supervised release (as opposed to an unspecified term), the error was similarly corrected by the PSI. As in Bejarano, Brown did not object to the PSI's correct statement concerning his statutory range of supervised release. Brown stated at the sentencing hearing that he discussed the PSI with his attorney and understood its contents. After the district court imposed Brown's sentence, including the lifetime term of supervised release, Brown and his attorney again forfeited an opportunity to object to the term of supervised release. Accordingly, like Bejarano's actions, Brown's own conduct indicates that his substantial rights were not harmed by the district court's error during the plea hearing. See also Carey, 884 F.2d at 549 (finding no prejudice where the defendant failed to object to the correct information about his supervised release provided by the PSI and the sentencing judge).

Brown attempts to distinguish his case from Bejarano based on the following footnote:

We also note that every circuit that has addressed this issue has held that a district court's failure to inform a defendant

586 F.3d 1347

that he faces a specific term of supervised release, or to inform the defendant of the effect of supervised release on his sentence, is harmless error in a situation like this one, where the defendant's actual sentence, including the term of imprisonment and period of supervised release, is well below the sentence that the defendant was informed by the district court that he faced.

Bejarano, 249 F.3d at 1306 n. 1 (emphasis added). According to Brown, a district court's erroneous information about supervised release is harmless error where the actual sentence imposed is less than the erroneously stated term. Because Bejarano's lifetime term of supervised release exceeded the maximum 3-year term that he was mistakenly advised of at the plea hearing, Brown argues that the district court's error was not harmless under Rule 11(h).

Brown's argument is meritless because his case is not subject to harmless error analysis. We may review for harmless error under Rule 11(h) where a defendant has moved in the district court to withdraw his guilty plea based on Rule 11 error. See United States v. Monroe, 353 F.3d 1346, 1349-50 n. 2 (11th Cir.2003). In this case, Brown did not move to withdraw his plea in the district court. Our review is therefore limited to plain error. See id.; see also Moriarty, 429 F.3d at 1019 ("[W]hen a defendant fails to object to a Rule 11 violation, we review only for plain error.")

Furthermore, Brown has failed to show a reasonable probability that he would not have pled guilty but for the Rule 11 error. See Dominguez Benitez, 542 U.S. at 83, 124 S.Ct. at 2340. Despite his lengthy criminal record, stretching back to 1991, the court gave Brown "the benefit of [his] bargain" by sentencing him to the minimum term of his guidelines range. Doc. 42-2 at 10, 14. There is no evidence to support Brown's current allegation (raised for the first time in his reply brief) that he would not have pled guilty if he had known that the maximum supervised release term was life instead of three years. Accordingly, we conclude that the district court did not...

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  • U.S.A v. Dean, No. 09-13115.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 28 Abril 2010
    ...we are bound by Ambert. Dean's constitutional arguments therefore must fail. See Ambert, 561 F.3d at 1208-15; United States v. Brown, 586 F.3d 1342, 1351 (11th Cir.2009).IV. Dean's remaining argument is that the Attorney General's rule that SORNA applied retroactively did not comply with th......
  • U.S. v. Guzman, Docket No. 08-5561-cr.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 7 Enero 2010
    ...requirements of SORNA. United States v. Hester, 589 F.3d 86, 92-93 (2d Cir.2009) (per curiam); see also United States v. Brown, 586 F.3d 1342, 1347-49 (11th Cir. 2009); United States v. George, 579 F.3d at 965; United States v. Gould, 568 F.3d 459, 463-66 (4th Cir.2009). Furthermore, 591 F.......
  • U.S. v. Cotton, Criminal Action No. 10–126 (JDB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 20 Enero 2011
    ...the distinction between a jurisdiction's duty to implement SORNA and a sex offender's duty to register.” United States v. Brown, 586 F.3d 1342, 1348 (11th Cir.2009). A sex offender's duty to register under SORNA is not contingent on a jurisdiction's implementation of SORNA. See Gould, 568 F......
  • United States v. Goguen, 1:11–cr–00003–JAW
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • 2 Noviembre 2016
    ...minimum pursuant to § 3583(k). Id.218 F.Supp.3d 124The Government responds that § 3583(k) is mandatory, citing United States v. Brown , 586 F.3d 1342 (11th Cir. 2009). Gov't's Resp. at 11–12. Moreover, because Mr. Goguen was required to register under SORNA and because he committed a crimin......
  • Request a trial to view additional results
90 cases
  • U.S.A v. Dean, No. 09-13115.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 28 Abril 2010
    ...we are bound by Ambert. Dean's constitutional arguments therefore must fail. See Ambert, 561 F.3d at 1208-15; United States v. Brown, 586 F.3d 1342, 1351 (11th Cir.2009).IV. Dean's remaining argument is that the Attorney General's rule that SORNA applied retroactively did not comply with th......
  • U.S. v. Guzman, Docket No. 08-5561-cr.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 7 Enero 2010
    ...requirements of SORNA. United States v. Hester, 589 F.3d 86, 92-93 (2d Cir.2009) (per curiam); see also United States v. Brown, 586 F.3d 1342, 1347-49 (11th Cir. 2009); United States v. George, 579 F.3d at 965; United States v. Gould, 568 F.3d 459, 463-66 (4th Cir.2009). Furthermore, 591 F.......
  • U.S. v. Cotton, Criminal Action No. 10–126 (JDB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • 20 Enero 2011
    ...the distinction between a jurisdiction's duty to implement SORNA and a sex offender's duty to register.” United States v. Brown, 586 F.3d 1342, 1348 (11th Cir.2009). A sex offender's duty to register under SORNA is not contingent on a jurisdiction's implementation of SORNA. See Gould, 568 F......
  • United States v. Goguen, 1:11–cr–00003–JAW
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • 2 Noviembre 2016
    ...minimum pursuant to § 3583(k). Id.218 F.Supp.3d 124The Government responds that § 3583(k) is mandatory, citing United States v. Brown , 586 F.3d 1342 (11th Cir. 2009). Gov't's Resp. at 11–12. Moreover, because Mr. Goguen was required to register under SORNA and because he committed a crimin......
  • Request a trial to view additional results

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