## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-2037

___________ United States of America, * * Appellee, * Appeal from the United States * District Court for the Western v. * District of Missouri. * Lewis William Kelly, * * Appellant. *

___________ Submitted: November 17, 1998 Filed: February 1, 1999

___________ Before MCMILLIAN, FLOYD R. GIBSON and HANSEN, Circuit Judges.

___________ FLOYD R. GIBSON, Circuit Judge. Lewis William Kelly pleaded guilty to one count of possession with intent t o di stribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (1994), and on e count of using and carrying a firearm during and in relation to a drug traffickin g offense, in violation of 18 U.S.C. § 924(c) (1994). Kelly appeals his sentence an d contends that he is entitled to have his guilty plea set asid e because the transcript of theThe HONORABLE SCOTT O. WRIGHT, United States District Judge for the 1 Western District of Missouri. The grand jury returned the Superseding Indictment on September 4, 1997. The 2 Ind ictment

charged Kelly with one count of possession with intent to distribut e methamphetamine, two counts of distribut ion of methamphetamine, one count of using a firearm in relation to a drug trafficking offense, and one count of possession o f marijuana with intent to distribute. Kelly was sentenced to 120 months on the methamphetamin e possession charge 3 and 60 months on the firearm charge, sentences to run consecutively. -2- heari ng in which he pleaded guilty is unavailable to his appellate counsel. We affirm the district court's judgment and order. 1

I. BACKGROUND

On October 29, 1997, Kelly, pursuant to a written Plea Agreement, pleade d guiltyto counts one and four of a five-count Superseding Indictment. On that sam e 2 day, a hearing was held in the district court. During the hearing, the district court accepted Kelly's guilty pleas and ordered a Presentence Investigation Report (PIR)

. SeeCriminal Minutes - Change of Plea, Appellant's Separate App. at 44. The hearing
was attended by Judge Wright, Kelly, Kelly's counsel, counsel for the government, a parole officer, a

nd a court reporter. See Criminal Docket Sheet, Appellant's Separate App. at 6, and Criminal Minutes - Change of Plea, Appellant's Separate App. at 44. On February 2 0, 1998, the district court sentenced Kelly to a total of 180 months 3 incarceration with five years supervi sed release and imposed a $3000.00 fine. See Tr. of Sentencing Proceeding at 8.-3-

OnDecember 8, 1997, a fire in the United States District Court Clerk's Office in Jefferso n City, Missouri, destroyed the tape recording and court notes of Kelly' s Octob er 29 plea hearing. As the tape recording had not yet been transcribed, the fire destroyed the only verbatim record of the hearing.
Kelly appealed his sentence and retained new appellate counsel in April of 1998. When Kelly's counsel requested a transcript of t he hearing, the Clerk's Office informed her that the transcript she sought was u navailable due to the fire. Kelly argues that the lack of the transcript renders his counsel unable to determine what, if any, errors were made at the district court level. Therefore, Kelly contends that the appropriate relief is to allow him to withdraw his guilty plea. Kelly maintains that he did not understand the ran ge of punishments and, thus, did not knowingly and voluntarily plead guilty

. Because we find that Kelly was not prejudiced by the inadequate record, we affirm the district court.

II. DISCUSSION
Initially, we note that the Court Reporters Act has been undeniably violated in this case. See28 U.S.C. § 753 (b) (1994). Section 753(b) of the Act requires that "all proceedings in c riminal cases had in open court . . . shall be recorded verbatim . .

. [and] preserve[d] . . . in the public records of the court for not less than ten years. " However, Congres s did not provide a remedy for violations of the Act. Rule 10(c) of the Federal Rules of Appellate Procedure addresses the issue of u navailable transcripts. Rul e 10(c) provides that an "appellant may prepare a statement of the evidence o r proceedings from the best available means" when a transcript is unavailable or non-Pe rtinent portions of the record on appeal consist of the written Ple a 4 Agreement, signed by Kelly, and the transcript of the Sentencing Proceeding. -4- existent. In his attempt to prepare a statement of the evidence, Ke lly claims that no one present at the hea

ring can recall verbatim what actually transpired. Kelly argues that 4 the violation of the Court Reporters Act and the participants' inability to reconstruc t the hearing verbatim require reversal of the district court's judgment and sentence and remand to the district court in which Kelly may alter his previous plea. We disagree.

Th e Eighth Circuit has never specifically addressed the consequences o f violating the Court Reporters Act. However, a majority of courts which have face d simi lar factual circumstances have held that mere non-compliance with the Act doe s not constitute automatic grounds for reversal. See United States v. Brand , 80 F.3 d 560, 563 (1st Cir. 1996) ("nothing prescribes automatic reversal of a defendant' s convictions for non-comp liance [with §753(b)]"); United States v. Winstead , 74 F.3d 1313, 1321 (D.C. Cir. 1996) (burdens and benefits of reversing convictions due t o i ncomplete transcript weighed on a case-by-case basis); United States v. Wilson , 16 F.3d 1027, 1031 (9th Cir. 1994) (noting that defendant must demonstrate "specifi c pr ejudice" from inadequate transcript to warrant reversal). But see United States v

. Se lva , 559 F.2d 1303, 1306 (5th Cir. 1977) ("When . . . a criminal defendant i s representedon appeal by counsel other than the attorney at trial, the absence of a substantial and significant portion of the record, even absent any showing of specific prejudice or error, is sufficient to m andate reversal.")(internal footnote omitted). With the exception of the Fi fth Circuit, every Court of Appeals that has addressed the issue of incomplete or unavailable transcripts has required that the appellant show that the Act's violation specifically prejudiced their ability to perfect an appeal. See , e.g. , United States v.Kelly cites in his brief this Court's per curiam decision in United States v

. 5 Knox , 456 F.2d 1024 (8th Cir. 1972), as support for the proposition that lack of a transcript requires reversal. In Kn ox , the entire transcript of district court proceedings were unavailable, and the Court noted, with no further discussion, that the "peculiar facts of this case . . . [made] [a]n actual transcript . . . essential to proper review." Id

. at 1025. In that case, Knox asserted on appeal that his consolidated trial on tw o unrelated offenses had resulted in prejudicial confusion of the jury. We see n o inconsistenc y between the holding in Knoxand our decision today, especially in light of our restriction of Knoxto its "peculiar facts." Id

. Neither Judge Wright, Kelly's trial counsel, the United States attorney, nor the 6 parole officer present in the courtroom remembered any untoward occurrences during the guilty plea hearing. -5- Sierra , 981 F .2d 123, 125 (4th Cir. 1992); United States v. Gallo , 763 F.2d 1504 , 1530 (6th Cir. 1985). We find persuasive the reasoning adopted by the majority of the Courts of Appeals that some showing of prejudice is required before non-compliance with the Court Reporters Act necessitates reversal of a defendant's conviction. 5
Kelly h as failed to allege, let alone demonstrate, that his ability to perfect a n appeal was prejudiced by the lack of the guilty plea transcript. He has not alleged that the court e rred in its acceptance of his guilty plea. In fact, every indication mad e available to this Court by Kelly and the government support the presumption that the guilty plea was advanced by Kelly and accepted by the court in a routine manner. 6
Kelly also claims that, were a transcript of the guilty plea hearing available, he would be able to present evidence on appeal that his plea was not knowing o r voluntary. We find this contention to be without merit. The items available for review upon appeal indicate that Kelly made a kno wing and voluntary decision to plead guilty to two counts of a five-count indictment in exchange for the government's agreementThe di strict court granted Kelly a one-month downward adjustment fo r 7 acceptance o f responsibility. See Tr. of Sentencing Proceeding (Feb. 20, 1998) at 6. -6- to drop the remaining three counts. See Plea Agreement, Appellant's Separate App

. at 13. The written Plea Agreement, signed by Kelly, also states that:
The Defendant acknowledges that he has read the entire Plea Agreement, discussed it wit

h counsel, and understands each and every provision and agreement. H e further acknowledges that this agreement was freely and volun tarily entered into, without coercion, and with the benefit o f counsel, with whose performance and advice he is pleased.
Id. at 19. Ke lly, in his objections to the PIR, asserted that he was entitled to a downward adjustment in his sentence for acceptance of res ponsibility. Kelly's attempt 7 to reduce his sentence through his own acceptance of respon sibility is inconsistent with his attempt to claim now that he did not knowingly or voluntarily plead guilty.
We re ject Kelly's contention that he is entitled to retract his guilty plea simply because a fire destroyed the only verbatim record of the hearing. Despite the lack of this transcript, Kelly has failed to demonstrate any specific prejudice to his ability to perfect an appeal which would justify allowing him to alter his plea.
III. CONCLUSION
For the reasons set forth in this opinion, we affirm the judgment of the district court.-7-

A true copy.
Attest. CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT