[DO NOT PUBLISH]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.

Case: 13-14131 Date Filed: 08/25/2014 Page: 1 of 5 
2

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 documentmaking 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 

Case: 13-14131 Date Filed: 08/25/2014 Page: 2 of 5 
3

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.

Case: 13-14131 Date Filed: 08/25/2014 Page: 3 of 5 
4

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 

Case: 13-14131 Date Filed: 08/25/2014 Page: 4 of 5 
5

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.

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