[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-14600

Non-Argument Calendar

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D.C. Docket No. 1:16-cr-20878-CMA-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

RICKY NELSON BYNUM, 

 Defendant-Appellant. 

________________________

Appeals from the United States District Court

for the Southern District of Florida

________________________

(August 19, 2019)

Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM: 

Ricky Nelson Bynum appeals his convictions for possession with intent to 

distribute 28 grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1),

and knowingly possessing a firearm in furtherance of a drug-trafficking crime, in 

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violation of 18 U.S.C. § 924(c)(1)(A). On appeal, he argues that the district court’s 

plea colloquy was constitutionally defective and violated Fed. R. Crim. P. 11 

(“Rule 11”) because he was not adequately advised of the charges against him and 

the consequences of his guilty plea, and there was an insufficient factual basis to 

support his guilty plea. He also argues that his counsel provided ineffective 

assistance throughout his criminal proceedings. For the reasons set forth below, 

we affirm Bynum’s convictions and decline to address his ineffective assistance 

claim in this direct appeal. 

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Information, Plea Agreement, and Factual Basis 

Bynum was charged by information with one count of possession with intent 

to distribute 28 grams or more of a mixture and substance containing a detectable 

amount of cocaine base and a detectable amount of cocaine in violation of 21 

U.S.C. § 841(a)(1), (b)(1)(B), (C) and one count of knowingly carrying a firearm 

in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). 

Bynum agreed to plead guilty to both counts pursuant to a written plea agreement 

and agreed to waive his right to prosecution by indictment. The plea agreement 

provided in relevant part that: (1) as to count one, the sentencing court “must 

impose a statutory minimum term of imprisonment of five years, and may impose 

a statutory maximum term of imprisonment of up to forty years” and (2) as to 

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count two, the sentencing court “must impose a statutory minimum term of five 

years of imprisonment and may impose a statutory maximum term of 

imprisonment up to life, which is to run consecutive to any other term of 

imprisonment.” The plea agreement also reflected that the parties agreed to jointly 

recommend that the quantity of cocaine base involved in the offense is 228 grams. 

Bynum and his counsel also signed a factual proffer that described law 

enforcement’s search of Bynum’s home which uncovered crack cocaine, 

distribution paraphernalia, firearms, and U.S. currency. Law enforcement found 

the following items in Bynum’s bedroom: his wallet and crack cocaine lying on his 

nightstand, powder cocaine in his dresser, a loaded .40 caliber handgun underneath 

his pillow, a loaded .38 revolver in his closet, and a rifle at the foot of his bed. 

More crack and powder cocaine, narcotics paraphernalia, and U.S. currency were 

discovered in a second bedroom. In a post-Miranda1 interview, Bynum stated that 

all of the firearms, narcotics, and money found in his residence were his and that 

he owned the firearms for protection. The total weight of cocaine base discovered 

in Bynum’s residence was 228 grams. The factual basis finally stated: “Defendant 

possessed the narcotics with intent to distribute them. Defendant further possessed 

the firearms discovered in his residence in furtherance of distributing narcotics.” 

B. Change of Plea Hearing 

1 Miranda v. Arizona, 384 U.S. 436 (1966). 

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At Bynum’s change of plea hearing, he was placed under oath and answered 

the court’s questions. Bynum stated that he had a high-school education, had not 

been treated for mental illness or drug addiction, had fully discussed the 

information and his case with his attorney, and that he was satisfied with the advice 

he received from his attorney. He stated that he understood the two charges that he 

was pleading guilty to. 

The sentencing court asked the assistant United States Attorney to set forth 

the elements of the offenses Bynum was pleading guilty to. With respect to count 

two, she stated:

There are three elements of the second offense, the first of 

which is that the Defendant committed the drug trafficking offense as 

charged; second, that the Defendant knowingly possessed a firearm; 

and, third, that the Defendant possessed the firearm during in relation 

to the drug trafficking crime that was charged.

Bynum’s counsel agreed that this was an accurate statement of the elements. 

Bynum’s counsel stated to the sentencing court the steps he had taken to 

familiarize Bynum with the charges, the Government’s evidence, his right to 

proceed to trial, and the consequences of a guilty plea. Mr. Bynum agreed with

counsel’s descriptions of such steps. 

Mr. Bynum stated that he had read the plea agreement and discussed it fully 

with his counsel. The sentencing court next reviewed the plea agreement, 

explaining that it could impose an above or below guidelines sentence up to the 

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statutory maximum. As to count one, the court explained that it was required to 

impose a minimum term of five years’ imprisonment and could impose a statutory 

maximum term of forty years’ imprisonment. As to count two, the court explained 

that it was required to impose a minimum term of five years’ imprisonment, and it 

could impose a sentence up to life, “to run consecutive to any other term of 

imprisonment.” The court asked Bynum if he understood the maximum possible 

sentence and he responded in the affirmative. Bynum also confirmed, among other 

things, that he agreed to jointly recommend that 228 grams of cocaine base was 

involved in his offense and understood the rights that he was giving up by pleading 

guilty. He confirmed that he was pleading guilty because he was, in fact, guilty. 

Next, the court reviewed the factual proffer with Bynum, who confirmed 

that he had read it and discussed it with counsel prior to signing it. He confirmed 

that, had the case proceeded to trial, the Government would have proven the facts 

contained in the factual proffer—which the court summarized on the record—

beyond a reasonable doubt. The court accepted Bynum’s plea and adjudicated him 

guilty. 

C. First Sentencing Hearing 

Prior to Bynum’s sentencing hearing, United States Probation prepared a 

Presentence Investigation Report (“PSR”), which, among other things, stated that, 

as to count one, Bynum was subject to a statutory minimum term of imprisonment 

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of five years and maximum of forty years and, as to count two, Bynum faced a 

statutory minimum term of imprisonment of five years that “shall run consecutive 

to any other term of imprisonment.”2

 As to applicable Guideline provisions, the 

PSR stated that the Guideline imprisonment range was 57 to 71 months and that 

count two requires 60 months imprisonment, to run consecutively to any other 

term. This Guideline calculation did not take into account that Bynum was subject 

to a statutory mandatory minimum—which was higher than the stated Guideline 

range—as to count one. 

Bynum did not object to the PSR but, through counsel, filed a motion for 

downward departure. This motion correctly recounted the offenses Bynum had 

pleaded guilty to, acknowledged that he was not eligible for safety valve relief 

pursuant to U.S.S.G. § 5C1.2(a)(2), and requested a downward departure on count 

one. 

At his sentencing hearing, Bynum confirmed that he had reviewed the PSR 

with counsel. The Government requested a 57-month sentence, at the low end of 

the Guideline range, as to count one “in addition to the” 60-month sentence as to 

count 2. The Government stated that it was “unfortunate” that the safety valve 

could not apply in this case because “Mr. Bynum’s son was selling quite a lot of 

2 The PSR contained a scrivener’s error that referenced “Count Three” instead of “Count 

Two” but this error was corrected in the PSR 

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narcotics, and that’s how we actually came across Mr. Bynum. He was using Mr. 

Bynum’s home to sell drugs . . . .” Defense counsel repeated its request for a 

downward variance, asking that the court grant a downward variance to one day on 

count one followed by the consecutive five-year sentence as to count 2. 

The sentencing court asked the Government to clarify its earlier statement 

regarding Bynum’s son’s participation in drug activities, because the PSR reflected 

that Bynum admitted that all of the drugs within the residence belonged to him. 

The Government responded that Bynum was working with his son to traffic 

narcotics, but was doing a smaller portion of the selling compared to his son. The 

Government stated that, as to Bynum’s admission that all of the drugs were his, it 

thought “to some extent he was protecting his son, which is sort of 

understandable.” It stated that it was somewhat difficult to parse out which drugs 

belong to who and that it thought Bynum’s admission “is more of a fatherly 

statement than necessarily an accurate reflection of . . . whose those drugs actually 

were.” The sentencing court granted Bynum’s motion for a downward departure in 

part and sentenced him to a term of 84 months total, compromised of 24 months as 

to count one and 60 months, to run consecutively to count one, as to count two. 

D. Second Sentencing Hearing 

A week later, Bynum returned for resentencing. The sentencing court stated 

that, after Bynum’s first sentencing, it received a memorandum from United States 

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Probation stating that Bynum must be resentenced because count one was subject 

to a mandatory minimum sentence that the sentencing court had no discretion to 

vary downward from. Bynum’s counsel stated that he had explained the law to his 

client, including that if the current sentence remained in place it would be 

overturned on appeal. Bynum’s counsel also stated that he had explained to his 

client that he could ask to have his plea set aside based upon his prior belief that he 

would be sentenced to a shorter term. Counsel stated that he was “quite sure that if 

[he] asked the Court to set [Bynum’s sentence] aside, that this Court would do so,” 

to which the sentencing court responded, “correct.” Bynum’s counsel then 

indicated that, despite being advised of his ability to request that his plea be 

withdrawn, Bynum did not want to proceed to trial. 

Bynum then addressed the sentencing court and said “this may be a ten-year 

term, right? I may not have ten years to give you because I got congestive heart

failure, you know. And I’m just asking on the mercy of the Court, you know, if 

you could do maybe a split or something?” The court then explained that it did not 

have discretion to do so and that she must impose the mandatory minimums. The 

Government then recounted the sentencing benefits that Bynum received by 

pleading guilty—namely that the Government agreed to charge a five-year instead 

of a ten-year mandatory minimum as to count one. The Government also 

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reiterated that it has always been the parties’ agreement that there would be a fiveyear mandatory minimum as to count one. 

The sentencing court then announced that Bynum was sentenced to a term of 

imprisonment of 120 months—60 months as to count one and a consecutive term 

of 60 months as to count two. The sentencing court informed Bynum that he had 

fourteen days after entry of judgment to file notice of appeal. 

E. First § 2255 Proceeding

A few months later, Bynum filed a pro se 28 U.S.C. § 2255 motion, 

asserting eight ineffective assistance of counsel claims, including a claim that 

counsel had failed to file an appeal despite being instructed to do so. A magistrate 

judge determined that the failure to file appeal claim warranted an evidentiary 

hearing and appointed a public defender to represent Bynum. Bynum’s § 2255 

counsel and the magistrate judge both made clear that the scope of this hearing was 

limited to the issue of the notice of appeal. Bynum testified that—among other 

things regarding his understanding of the plea, factual proffer, and sentencing 

proceedings—he instructed his sentencing counsel to file a notice of appeal but he 

did not do so. 

The magistrate judge issued a report and recommendation recommending 

that Bynum’s § 2255 motion be granted solely as to the failure to file a notice of 

appeal claim and that Bynum be permitted to file an out-of-time appeal. It was 

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recommended that the remaining claims be dismissed without prejudice. The 

district court adopted the report and recommendation. The sentencing court then 

reinstated the judgement reflecting Bynum’s 120-month sentence, which Bynum 

presently appeals from. 

II. PLEA COLLOQUY 

A. Legal Standards

Bynum contends that his guilty plea should be vacated because he did not 

understand the nature of his charges or the consequences of his guilty plea. When 

a defendant fails to raise a constitutional or Rule 11 violation before the district 

court, we review only for plain error. United States v. Moriarty, 429 F.3d 1012, 

1018–19 (11th Cir. 2005) (per curium). To establish plain error, a defendant must 

show that “there is (1) error, (2) that is plain, and (3) that affects substantial 

rights.” Id. at 1019. If these conditions are met, we may then exercise our

discretion to notice a forfeited error, “but only if the error seriously affect[s] the 

fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation 

marks omitted) (alterations in original). “Under plain error review, the defendant 

bears the burden of persuasion with respect to prejudice or the effect on substantial 

rights.” Id. (quotation marks omitted). A defendant seeking a reversal of his 

conviction on the ground that the district court committed plain error under Rule 

11 in accepting his guilty plea must show a reasonable probability that, but for the 

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error, he would not have entered the plea. United States v. Dominguez Benitez, 

542 U.S. 74, 83 (2004). On plain-error review, we “may consult the whole record 

when considering the effect of any error on substantial rights.” United States v. 

Monroe, 353 F.3d 1346, 1350 (11th Cir. 2003) (quotation marks omitted). “There 

is a strong presumption that the statements made during a plea colloquy are true.” 

United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994).

“The foundational principles governing guilty plea procedures derive from 

constitutional notions of due process.” United States v. Presendieu, 880 F.3d 1228, 

1238 (11th Cir. 2018). “[I]f a defendant’s guilty plea is not equally voluntary and 

knowing, it has been obtained in violation of due process and is therefore void.” 

McCarthy v. United States, 394 U.S. 459, 466 (1969). “[A] plea does not qualify 

as intelligent unless a criminal defendant receives real notice of the true nature of 

the charge against him, the first and most universally recognized requirement of 

due process.” Bousley v. United States, 523 U.S. 614, 618 (1998) (quotation 

marks omitted). 

“Building on these fundamental constitutional principles, Rule 11(b) sets out 

procedures that district courts must follow when accepting guilty pleas.” 

Presendieu, 880 F.3d at 1238. Under Rule 11, before a court can accept a guilty 

plea, it must inform the defendant of his rights should he plead not guilty, the 

nature of the charges against him, the potential penalties, and the court’s obligation 

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to calculate his advisory guideline range. See Fed. R. Crim. P. 11(b)(1)(B)-(E), 

(G)-(M). The court must also explain that a guilty plea waives the defendant’s trial 

rights and ensure that the plea is entered voluntarily and is supported by a 

sufficient factual basis. See Fed. R. Crim. P. 11(b)(1)(F), (b)(2)-(3). Further, the 

court must explain that the defendant can be prosecuted for perjury for testifying 

falsely under oath. See Fed. R. Crim. P. 11(b)(1)(A).

Rule 11 is “designed to address the three core objectives” necessary for a 

knowing and voluntary plea: (1) the guilty plea is free of coercion; (2) the 

defendant understands the nature of the charges against him; and (3) the defendant 

understands the direct consequences of the guilty plea. Presendieu, 880 F.3d at 

1238 (quotation marks omitted). Whether the court has complied with the second 

core objective depends on a variety of factors, including the complexity of the 

offense and the defendant’s intelligence and sophistication. Id. There is no 

“simple or mechanical rule” that must be applied in determining whether the 

district court adequately informed the defendant of the nature of the charges 

brought against him. United States v. Camacho, 233 F.3d 1308, 1314 (11th Cir. 

2000) (quotation marks omitted). We have held that, for simple charges, “a 

reading of the indictment, followed by an opportunity given to the defendant to ask 

questions about it, will usually suffice.” United States v. James, 210 F.3d 1342, 

1344–45 (11th Cir. 2000) (quotation marks omitted). 

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“[I]n some cases, a factual proffer may set forth in such detail the facts of 

the crime that it effectively incorporates some elements of the offense.” 

Presendieu, 880 F.3d at 1239. In Presendieu, we concluded that, although the 

district court did not explicitly state each of the elements of the charge in its own 

voice, all of the necessary factual material was contained in the factual proffer as 

recited. Id. In United States v. Wiggins, the defendant argued that he was not 

informed of the charges because the district court had not separately outlined each 

element of the offense or asked him if he understood those elements. 131 F.3d 

1440, 1442 (11th Cir. 1997) (per curiam). We determined that there was no plain 

error because the district court had incorporated the substance of the elements of 

the charge by telling the defendant to listen to the government’s factual proffer, the 

defendant unequivocally admitted to committing the crime, and the district court 

made a factual finding that the defendant had entered an informed guilty plea based 

on its observation of him at the plea colloquy. Id. 

To comply with the third core objective, the district court must inform the 

defendant of the rights that he gives up by pleading guilty, the court’s authority to

impose certain punishments, and the possibility of a perjury prosecution for false 

statements during the plea colloquy. See Moriarty, 429 F.3d at 1019; see also Fed. 

R. Crim. P. 11(b)(1). “[W]here a signed, written plea agreement describing a 

mandatory minimum sentence is specifically referred to during a Rule 11 plea 

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colloquy, the core principle that the defendant be aware of the consequences of his 

plea has been complied with.” United States v. Jones, 143 F.3d 1417, 1420 (11th 

Cir. 1998) (per curiam). 

It is unlawful for a person to knowingly and intentionally possess with the 

intent to distribute a controlled substance. 21 U.S.C. § 841(a)(1). A person who 

possesses with the intent to distribute 28 grams or more of a mixture and substance 

containing a detectable amount of cocaine base, “shall be sentenced to a term of 

imprisonment which may not be less than 5 years and not more than 40 years.” Id.

§ 841(b)(1)(B). Section 924(c)(1)(A) provides, in relevant part, that “any person, 

who during and in relation to any . . . drug trafficking crime . . . , uses or carries a 

firearm, or who, in furtherance of any such crime, possesses a firearm,” will 

receive a term of not less than five years’ imprisonment imposed in addition to the 

punishment provided for the drug-trafficking crime. 18 U.S.C. § 924(c)(1)(A)(i). 

The language from prong one, “during and relation to,” is broader than the 

language from prong two, “in furtherance of.” United States v. Madden, 733 F.3d 

1314, 1318 (11th Cir. 2013). We have held that the district court plainly erred 

where it constructively amended the indictment by replacing “in furtherance of” 

with “during and relation to” in the jury instructions because it broadened the 

possible basis for conviction. Id. at 1318–19. We concluded that the constructive 

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amendment prejudiced the defendant because he may have been convicted on a 

charge that was not in the indictment. Id. at 1322–23.

Under § 924(c), we have required that, for a conviction under the possession 

prong, the government must “establish that the firearm helped, furthered, 

promoted, or advanced the drug trafficking.” United States v. Timmons, 283 F.3d 

1246, 1252 (11th Cir. 2002). “[T]he presence of a gun within the defendant’s 

dominion and control during a drug trafficking offense is not sufficient by itself to 

sustain a § 924(c) conviction.” Id. at 1253. The court may consider a variety of 

factors to establish the nexus between the gun and the drug operation, including: 

the type of drug activity that is being conducted, accessibility of the 

firearm, the type of the weapon, whether the weapon is stolen, the 

status of the possession (legitimate or illegal), whether the gun is 

loaded, proximity to the drugs or drug profits, and the time and 

circumstances under which the gun is found.

Id. (quotation marks omitted). We have provided that a defendant who was found 

under the covers of his bed, along with a gun, a quantity of methamphetamine, and 

several hundred dollars in cash “easily meets” the “in furtherance” requirement. 

United States v. Lopez-Garcia, 565 F.3d 1306, 1322 (11th Cir. 2009). Specifically, 

we have emphasized the accessibility of the gun and the proximity of the gun to the 

drugs and drug profits. Id.; see also Timmons, 283 F.3d at 1253 (concluding that 

evidence of a “bullet proof vest, crack cocaine on the stove and under the cushions 

of the couch, two fully loaded firearms on top of the oven and ammunition inside 

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the oven in the living room of his apartment . . . was sufficient for the jury to have 

concluded that Timmons was guilty of possessing the firearms ‘in furtherance of’ 

drug trafficking”). 

B. Discussion 

Bynum contends that his guilty plea should be vacated because he did not 

understand the nature of his charges or the consequences of his guilty plea. He first 

contends that he believed that he pleaded guilty to a felon in possession of a firearm 

charge, which did not have a mandatory minimum sentence. In making this 

argument, Bynum points to his testimony and his sentencing counsel’s testimony 

during the § 2255 hearing. At his change of plea hearing, however, Bynum 

confirmed that he had received a copy of the information containing the two charges 

against him and that he had discussed these offenses with counsel. Even if he was

misinformed by counsel about the nature of these charges, the court made clear at 

his change of plea hearing that he was pleading guilty to one count of possession 

with intent to distribute 28 grams or more of cocaine bases and one count of 

possession of a firearm in furtherance of a drug-trafficking crime. 

Bynum also claims that he did not understand the charges against him because 

at his change of plea hearing, the Government inaccurately stated the elements as to 

count two—stating that he possessed the firearm “during [and] in relation to” a drugtrafficking crime instead of “in furtherance of” said drug-trafficking crime. 

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Bynum’s sentencing counsel confirmed that the Government accurately stated the 

elements and Bynum was not asked if he had any questions. Notwithstanding this 

misstatement of an element of count two at the change of plea hearing, the plea 

agreement—which Bynum confirmed he had read and discussed with his attorney—

accurately stated the element. Moreover, the factual proffer described that police 

located crack cocaine in Bynum’s bedroom next to his wallet on the nightstand, 

powder cocaine in Bynum’s dresser, a loaded .40 caliber handgun underneath his 

pillow, a loaded .38 revolver in his closet, and a rifle at the foot of his bed. Bynum 

agreed that he possessed these narcotics with the intent to distribute them and that 

he possessed the firearms in his residence in furtherance of distributing the narcotics. 

He also confirmed that, these facts were true and correct and that, had he proceeded 

to trial, the Government would have been able to prove the facts within the factual 

proffer beyond a reasonable doubt. Accordingly, despite misstating one of the 

elements to count two during the change of plea hearing, the Government 

incorporated the elements of the offense into its plea offer—which it had Bynum 

listen to at the hearing and which Bynum stated were true and correct. See

Presendieu, 880 F.3d at 1239–41; Wiggins, 131 F.3d at 1442.

Second, Bynum contends that he did not understand that he was facing a 

mandatory ten-year minimum sentence based on his counsel’s advice and the 

sentencing court’s explanation during his plea colloquy. The following mistakes 

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regarding the understanding of the mandatory total ten-year imprisonment, mostly 

occurring after Bynum’s plea, took place: (1) probation neglected to make count 

one’s low end of the guideline range reflect the statutory mandatory minimum and 

neither party objected; (2) Bynum’s sentencing counsel moved for a downward 

departure, requesting a sentence of one day, as to count one—relief the sentencing 

court did not have the discretion to order; (3) the Government requested a sentence 

of 57 months’ imprisonment as to count one—when the sentencing court did not 

have discretion to impose anything less than 60 months imprisonment; (4) the court 

initially sentenced Bynum to 24 months as to count one; and (5) Bynum asked the 

court if he was facing a ten year sentence and asked if the court “could do maybe a 

split or something.” Despite all of the foregoing, the district court did not plainly 

err in advising Bynum about the consequences (namely, the two consecutive 

mandatory minimum terms of imprisonment) of his guilty plea. At the plea hearing, 

the district court properly explained that count one had a statutory minimum of five 

years and that count two had a statutory minimum of five years “to run consecutive 

to any other term of imprisonment.” Although the court only asked Bynum if he 

understood the maximum possible sentences, Bynum confirmed that he had read and 

discussed the plea agreement—which correctly stated the consecutive mandatory 

minimums and which Bynum also signed—with his counsel. See Medlock, 12 F.3d 

at 187 (“There is a strong presumption that the statements made during the colloquy 

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are true.”). Because both the district court and the plea agreement both properly 

advised Bynum of the mandatory minimum sentences, he cannot show that the 

district court plainly erred in advising him of the consequences of his plea. See

Jones, 143 F.3d at 1420 (“We hold that where a signed, written plea agreement 

describing a mandatory minimum sentence is specifically referred to during a Rule 

11 plea colloquy, the core principle that the defendant be aware of the consequences 

of his plea has been complied with.”).

Third, Bynum contends that he would not have pleaded guilty had he been 

accurately informed of the charges against him and the penalties they carried. At his 

second sentencing hearing, Bynum was given the opportunity to withdraw his guilty 

plea but did not do so. Despite Bynum’s arguments that he was not given the chance 

to understand that he could withdraw the plea and that the district court failed to 

address him personally, (1) counsel stated at the hearing that he discussed the 

possibility of withdrawing the plea with Mr. Bynum; (2) counsel stated that Bynum 

indicated that he did not wish to proceed to trial; (3) the sentencing court stated that, 

if requested, it would set aside Bynum’s plea; (4) the sentencing court addressed 

Bynum personally, gave him the opportunity to speak on the matter, and Bynum 

never stated that he wished to withdraw his plea. Bynum has therefore not 

established that, but for the alleged errors, he would not have entered his plea. See

Dominguez Benitez, 542 U.S. at 83; Moritarty, 429 F.3d at 1019. 

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Fourth, Bynum contends that the sentencing court plainly erred during his plea 

colloquy. First, he contends that the court did not sufficiently inquire about his 

understanding of the charges and the mandatory minimums they carried. The court 

placed Bynum under oath and warned him that he could be prosecuted for perjury if 

he did not tell the truth. As outlined above, Bynum confirmed that he had read and 

discussed the plea agreement—which correctly stated the mandatory minimums and 

which Bynum also signed—with his counsel. We presume these statements to be 

true. See Medlock, 12 F.3d at 187. The court also properly explained that count one 

had a statutory minimum of five years and that count two had a statutory minimum

of five years “to run consecutive to any other term of imprisonment” at the change 

of plea hearing. The court informed Bynum of his rights should he decide to plead 

not guilty. Moreover, the court encouraged Bynum to ask questions if he did not 

understand anything in the plea colloquy and informed him of his ability to speak 

with his attorney off the record if requested. 

Fifth, Bynum contends that the district court failed to address him personally 

during his second sentencing hearing because it was clear he did not understand the 

consequences of his plea, and, had he understood, he would have withdrawn his plea. 

As outlined above both the court and the plea agreement informed Bynum of the 

mandatory minimum consecutive sentences, and Bynum’s claim that he would have 

withdrawn his plea is belied by his failure to do so at the second sentencing hearing 

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despite his counsel raising the possibility with him and the court confirming that it 

would permit him to do so.

Finally, Bynum contends that the plea was not supported by a sufficient 

factual basis. As to count one, Bynum contends that the only evidence supporting 

the drug quantity was his own statements, which the Government undermined at the 

sentencing hearing by stating that it believed he only made such statements to protect 

his son. As to count two, Bynum contends that the factual basis establishes only that 

he possessed firearms in close proximity to drugs but did not show a nexus between 

the guns and drugs nor did it indicate the amount of drugs found in his bedroom. The 

court did not err in determining that the factual basis for the plea was sufficient. 

First, Bynum confirmed that he read and fully discussed the factual basis with his 

counsel, that those facts were true, and that if the case proceeded to trial the 

Government would prove those facts beyond a reasonable doubt. He also confirmed 

that he was pleading guilty because he was, in fact, guilty. For count one, the factual 

proffer relied on Bynum’s post-Miranda statements that all of the firearms, narcotics, 

and U.S. currency within the residence were his. He signed the factual proffer, 

which also stated that the total weight of cocaine base found in the residence was 

228 grams and that he possessed the drugs with the intent to distribute them. For 

count two, the factual proffer (again, which Bynum signed) stated that he possessed 

the firearms in furtherance of the drug-trafficking scheme. As previously stated, 

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despite the Government misstating an element of count two at the plea hearing, the 

facts as outlined in the signed factual proffer—namely that police recovered two 

loaded firearms from Bynum’s bedroom in close proximity to crack and powder 

cocaine, U.S. currency, and Bynum’s wallet—nonetheless support Bynum’s 

conviction. See Madden, 733 F.3d at 1318–19. Accordingly, the district court did 

not plainly err in determining that the factual basis supported Bynum’s plea as to 

both counts. For all of the foregoing reasons, we conclude that the district court did 

not plainly err, either as a matter of due process or under Rule 11, in accepting 

Bynum’s guilty plea.

III. INEFFECTIVE ASSISTANCE CLAIMS

A. Legal Standards 

We review ineffective assistance of counsel claims de novo, as a mixed 

question of fact and law. Caderno v. United States, 256 F.3d 1213, 1216–17 (11th 

Cir. 2001) (per curiam). 

We “will not generally consider claims of ineffective assistance of counsel 

raised on direct appeal where the district court did not entertain the claim nor 

develop a factual record.” United States v. Patterson, 595 F.3d 1324, 1328 (11th 

Cir. 2010) (quotation marks omitted). A 28 U.S.C. § 2255 motion is the preferred 

means of deciding an ineffective-assistance claim, “even if the record contains 

some indication of deficiencies in counsel’s performance.” Id. (quotation marks 

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omitted). Nevertheless, we will consider ineffective-assistance claims “if the 

record is sufficiently developed.” Id. (quotation marks omitted). 

In United States v. Puentes-Hurtado, we declined to address the defendant’s 

ineffective-assistance claim despite the record containing “some evidence 

concerning [counsel’s] performance” because it was not sufficiently developed to 

address the claim. 794 F.3d 1278, 1285 (11th Cir. 2015). In that case, the 

defendant argued that his counsel provided ineffective assistance because counsel 

advised him that he would be sentenced based on no more than five kilograms of 

cocaine, even though the indictment and the plea agreement both indicated that the 

quantity of cocaine involved in the narcotics conspiracy was five kilograms or 

more. Id. In declining to address the ineffective-assistance claim, we noted that 

there was no testimony from the defendant or his counsel concerning their 

discussions about or their understanding of the plea agreement or drug quantity 

issues, and there was no testimony from the defendant concerning whether he 

would have insisted on going to trial had he known that his advisory guideline 

range would not be limited to 5 kilograms of cocaine and could be based on 244 

kilograms. Id. 

In United States v. Camacho, the defendant raised three claims of ineffective 

assistance of counsel in a post-trial motion. 40 F.3d 349, 354–55 (11th Cir. 1994), 

overruled on other grounds by United States v. Sanchez, 269 F.3d 1250, 1277 

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(11th Cir. 2001) (en banc). The district court held an evidentiary hearing, but only 

on one of the claims. Id. at 355. When the defendant raised the same three claims 

in his direct appeal, we declined to address the two claims that the district court 

had not considered at the evidentiary hearing because the record was insufficiently 

developed. Id. Concluding that the defendant’s counsel had not been ineffective 

as to the third claim, we affirmed the conviction but noted that the defendant’s 

remaining claims of ineffective assistance could be raised in a subsequent § 2255 

proceeding. Id. 

B. Discussion 

In this case, Bynum argues that his counsel for the change of plea hearing 

and sentencing was ineffective because he misadvised Bynum about the nature of 

his charges and consequences of his plea, overlooked obvious defenses, and failed 

to subject the charges to meaningful adversarial testing. He further asserts that, 

thanks to the § 2255 hearing below, there is sufficient record evidence for this 

court to consider his ineffective assistance claims. 

Because the record is not fully developed, we decline to address Bynum’s 

remaining claims of ineffective assistance of counsel. See Puentes-Hurtado, 794 

F.3d at 1285 (“Although the record contains some evidence concerning [counsel’s] 

performance, it is not sufficiently developed to allow us to address the ineffective 

assistance of counsel claim.”); Patterson, 595 F.3d at 1328. Even though this case 

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is unlike many other cases where ineffective assistance claims are raised on direct 

appeal by virtue of there being an evidentiary hearing in Bynum’s § 2255 

proceeding before the district court, that hearing was limited to the issue of 

whether counsel was defective in failing to file a notice of appeal. Testimony at 

the § 2255 hearing did touch on the plea agreement and contained some evidence 

concerning counsel’s performance but Bynum did not have a full and unfettered 

opportunity to develop the record regarding all of his ineffective assistance of 

counsel claims and the magistrate judge did not address them. We decline to 

consider Bynum’s ineffective assistance claims in this direct appeal but he may 

raise those claims in a subsequent § 2255 proceeding. See Camacho, 40 F.3d at 

355.

AFFIRMED.

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