FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEB 27, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-14929

Non-Argument Calendar

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D. C. Docket No. 05-00011-CR-CB

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

KELVIN ELLIS, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Alabama

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(February 27, 2007)

Before WILSON, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

Defendant-appellant Kelvin Ellis pleaded guilty to possession of a firearm

by a convicted felon, in violation of 18 U.S.C. § 922(g); robbery, in violation of 18
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U.S.C. § 1951; and using and brandishing a firearm during a crime of violence, in

violation of 18 U.S.C. § 924(c).

At the change-of-plea hearing, the court informed Ellis that the maximum

terms of imprisonment and supervised release for the § 924(c) charge were seven

years imprisonment and, erroneously, three years supervised release. 

The probation officer prepared a presentence investigation report (“PSI”),

determining the advisory guidelines range to be 51 to 63 months on the § 922(g)

and § 1951 counts, with a mandatory consecutive term of 84 months imprisonment

on the § 924(c) count. The PSI also correctly noted that the maximum term of

supervised release for the § 924(c) count was three to five years under 18 U.S.C.

§ 3583(b)(1) and U.S.S.G. § 5D1.2(a)(1). It does not appear that Ellis made any

objections to the PSI. The court sentenced Ellis to 51 months imprisonment on the

§ 922(g) and § 1951 charges, to run concurrently, and a consecutive 84-month term

of imprisonment on the § 924(c) charge, for a total of 135 months imprisonment. 

The court imposed three years of supervised release on the § 922(g) and § 1951

counts, with a concurrent five-year term of supervised release on the § 924(c)

count. Ellis now appeals, asserting a violation of Fed. R. Crim. P. (“Rule”) 11

because the court improperly advised him of the term of supervised release on the

§ 924(c) count. 
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When a defendant fails to assert a Rule 11 violation in the district court, we

review for plain error. United States v. Quinones, 97 F.3d 473, 475 (11th Cir.

1996). To establish plain error, Ellis must show “that there was error, that the error

was plain, and that it affected his substantial rights, i.e., the error affected the

outcome of the district court proceedings.” Once the appellant proves these three

elements, this court may correct the error only if it “seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. In evaluating whether

there was any effect on the defendant’s substantial rights, we may consider the

record as a whole. United States v. Monroe, 353 F.3d 1346, 1350 (11th Cir. 2003)

(quoting United States v. Vonn, 535 U.S. 55, 59, 122 S.Ct. 1043, 1046, 152

L.Ed.2d 90 (2002)). 

Under Rule 11, the district court must address three core principles before

accepting a guilty plea: “(1) the guilty plea must be free from coercion; (2) the

defendant must understand the nature of the charges; and (3) the defendant must

know and understand the consequences of his guilty plea.” United States v. Jones,

143 F.3d 1417, 1418 -1419 (11th Cir. 1998). Rule 11 also requires the court to

inform the defendant of “any maximum possible penalty, including imprisonment,

fine, and term of supervised release.” Fed. R. Crim. P. 11(b)(1)(H). 

As the government concedes, the court improperly advised Ellis of the term
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of supervised release for the § 924(c) count. Thus, there was an error that was

plain. United States v. Carey, 884 F.2d 547, 549 (11th Cir. 1989). Nevertheless,

Ellis is not entitled to relief because the error did not affect his substantial rights.

At the plea colloquy, Ellis was informed of an incorrect term of supervised

release. However, the PSI correctly indicated the term of supervised release, and

Ellis did not object to the PSI’s supervised release calculation. Moreover, after the

court imposed sentence, including the five years of supervised release, Ellis did not

object to the term. Thus, the error did not affect Ellis’s substantial rights. United

States v. Bejarano, 249 F.3d 1304, 1307 (11th Cir. 2001) (rejecting the defendant’s

argument that the district court committed plain error by failing to inform him of

the term of supervised release because the defendant’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.”);

Carey, 884 F.2d at 549 (holding that although the district court erred by failing to

inform the defendant at his plea hearing of the term of supervised release, the

defendant failed to object to the court’s imposition, pursuant to the PSI, of a term

of supervised release, and, therefore, the defendant’s substantial rights were not

violated). Accordingly, we AFFIRM.