FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEBRUARY 26, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-11990

Non-Argument Calendar

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D. C. Docket No. 06-20492-CR-SH

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

DAVID DION JONES, JR., 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Southern District of Florida

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(February 26, 2008)

Before CARNES, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

David Dion Jones appeals his conviction and sentence for possession with

intent to distribute crack cocaine, in violation of 21 U.S.C. § 841. 
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Jones agreed to plead guilty to a single count of possession with intent to

distribute crack cocaine, in violation of 21 U.S.C. § 841. At the change-of-plea

hearing, Jones indicated that he had a twelfth grade education, that he was satisfied

with counsel, and that he had read and signed the plea agreement. The court asked

defense counsel, “have you advised your client of all the rights he has standing as

someone accused of a commission of a crime in this our system of criminal

justice?” Counsel indicated that he had. After confirming that no one had made

any promises to Jones in exchange for the plea, and explaining the sentencing

procedure, the court stated that it found the plea to be knowing and voluntary. 

Although the court informed Jones that he had the right to plead not guilty and

proceed to trial, the court made no other inquiry under Fed. R. Crim. P. (“Rule”)

11. The entire colloquy lasted fifteen minutes. 

Based on the calculated guidelines range and the sentencing factors in 18

U.S.C. § 3553(a), the court sentenced Jones to 151 months’ imprisonment. Jones

now appeals, arguing that the court plainly erred by failing to adhere to the

mandates of Rule 11 to ensure he understood the consequences of his plea and

advise him of the rights he would be waiving by pleading guilty. He notes that one

of the rights the court should have informed him of was the right to confront

witnesses, and that because the charges against him were based on his interaction
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with a confidential informant, the right to cross-examine his accuser was crucial to

his decision to enter a plea. 

When a defendant raises a Rule 11 objection for the first time on appeal, we

review that objection for plain error. United States v. Vonn, 535 U.S. 55, 59, 122

S.Ct. 1043, 1046, 152 L.Ed.2d 90 (2002); United States v. Monroe, 353 F.3d 1346,

1349 (11th Cir. 2003). Under plain error review, the defendant has the burden to

show that there is an: (1) error; (2) that is plain; (3) that affects substantial rights. 

United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508

(1993). If these three elements are met, the court may exercise its discretion to

correct the error if it “seriously affect[s] the fairness, integrity, or public reputation

of judicial proceedings.” Id. (citation omitted). “[A] defendant who seeks reversal

of his conviction after a guilty plea, on the ground that the district court committed

plain error under Rule 11, must show 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). As the Supreme

Court has explained, however, “when the record of a criminal conviction obtained

by guilty plea contains no evidence that a defendant knew of the rights he was

putatively waiving, the conviction must be reversed. We do not suggest that such a

conviction could be saved even by overwhelming evidence that the defendant
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would have pleaded guilty regardless.” Id. (citing Boykin v. Alabama, 395 U.S.

238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). 

In evaluating whether a defendant has shown that his substantial rights were

affected or prejudiced, this court has examined the three “core objectives” of Rule

11: “(1) ensuring that the guilty plea is free of coercion; (2) ensuring that the

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

the defendant is aware of the direct consequences of the guilty plea.” Monroe, 353

F.3d at 1354 (internal citations omitted). There is no mechanical rule to apply in

determining whether the district court adequately informed the defendant of the

nature of the charges against him, and this court conducts a case-specific inquiry

that depends on the complexity of the charges and “the defendant’s sophistication

and intelligence.” United States v. Camacho, 233 F.3d 1308, 1314 (11th Cir.

2000) (citations omitted). This court has upheld “plea colloquies that fail to

address an item expressly required by Rule 11 so long as the overall plea colloquy

adequately addresses these three core concerns.” Monroe, 353 F.3d at 1354.

Rule 11 requires the court to inform the defendant of, and determine that the

defendant understands, that he has the right to a jury trial; the right to be

represented by counsel; the right at trial to present, confront and cross-examine

witnesses; and the right to be protected from compelled self-incrimination, and to
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testify and present evidence. The court also must explain that he will be waiving

these trial rights if the court accepts the plea. Finally, the court must confirm that

the defendant understands the nature of the charges against him. Fed. R. Crim. P.

11(b)(1)(C)-(G). 

Here, the record reflects that the court failed to inquire into Rule 11's core

concerns; to determine if Jones understood the rights he would be waiving by

pleaded guilty, the court simply asked counsel of counsel had discussed the rights

with Jones. At no time did the court explain what rights Jones would be waiving. 

And the record does not indicate which of these rights Jones and his attorney

discussed. Moreover, on the record before this court, it is difficult to determine

whether the court inquired into whether Jones understood the charges against him. 

Nothing indicates that the court discussed the charges against Jones other than to

mention that he was pleaded guilty to possession with intent to distribute crack. 

Notably, Jones had many other arrests and convictions for drug offenses, and § 841

is not a “complicated” offense. See United States v. Telemaque, 244 F.3d 1247,

1249 (11th Cir. 2001). Nevertheless, the record is devoid of evidence that the

court met the core concerns of Rule 11. 

Moreover, in his appellate brief, Jones proffers that there is a reasonable

probability that he would not have pleaded guilty had he understood that he could
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cross-examine witnesses. Thus, Jones has met his burden to show plain error.

Dominguez-Benitez, 542 U.S. at 84 n.10.

Furthermore, as the government concedes, the record is inadequate to

determine if Jones’s plea colloquy was sufficient under Rule 11. Therefore, we

vacate the plea and sentence and remand. Accordingly, we do not address Jones’s 

sentencing issue. 

VACATED and REMANDED.