FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 SEPTEMBER 16, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-14726

Non-Argument Calendar

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D. C. Docket No. 07-00167-CR-DHB-WLB-1-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JACOB ASHER PLOWRIGHT,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Georgia

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(September 16, 2010)

Before TJOFLAT, CARNES and WILSON, Circuit Judges.

PER CURIAM:

Jacob Asher Plowright is one of a group of young men who committed a
string of carjackings, armed robberies, and firearms offenses in and around

Augusta, Georgia. In the first robbery, Plowright threatened a store clerk with a

pistol. In the second incident, he shot another store clerk three times and inflicted

severe injuries.

Plowright and the government entered into an agreement. As part of that

agreement, he pleaded guilty to brandishing a firearm during a crime of violence,

in violation of 18 U.S.C. § 924(c)(1)(A)(ii), and discharging a firearm during

another crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). In

exchange, the government dismissed eight counts charging him with other crimes.

The agreement also included the government’s promise that it would “not object”

to Plowright receiving a sentence reduction for acceptance of responsibility under

U.S.S.G. § 3E1.1. That promise was of no real significance because the

consecutive minimum sentences mandated by § 924(c) made Plowright ineligible

for any such reduction. See U.S.S.G. § 2K2.4(b) & cmt. n.5 (“the guideline

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sentence is the minimum term of imprisonment required by statute”). Plowright

was sentenced to 32 years in prison.

Plowright appeals his convictions and sentence, contending that his guilty

 In fact, the only way Plowright’s sentence could have been reduced below the statutory 1

minimum would have been for the government to file a substantial assistance motion under

either U.S.S.G. § 5K1.1 (before sentencing) or Fed. R. Crim. P. 35 (after sentencing). The

government did not do so, nor did it ever promise that it would.

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plea was not knowing and voluntary because he was misled into believing he

would be eligible for a sentence reduction if he accepted responsibility. Because

any such error did not affect Plowright’s substantial rights, we affirm.

Due process requires that a guilty plea be made “knowingly and

voluntarily.” United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005).

And Fed. R. Crim. P. 11(b)(1) requires the court to make sure that the defendant

understands the consequences of his plea, including “any mandatory minimum

penalty” he will face. Plowright faced a mandatory minimum prison term of 7

years on the first § 924(c) count for brandishing a firearm, and a consecutive

mandatory minimum term of 25 years on the second count, for a total of 32 years.

See 18 U.S.C. § 924(c)(1)(A)(ii) & (c)(1)(C)(i). He was informed of this fact at

least five times: when the government filed its certification of penalty along with

the indictment; in the plea agreement; at the plea colloquy; in the presentence

report; and again at sentencing. Despite these clear warnings, it is conceivable that

the government’s promise to “not object” to a sentence reduction, coupled with the

district court’s remark at the Rule 11 hearing that Plowright would “lose [his]

acceptance of responsibility credit” if he were not completely truthful with his

probation officer, may have led Plowright to believe there was a possibility of a

reduced sentence. If so, however, that misconception was cleared up by the

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presentence report, which specifically said that an adjustment for acceptance of

responsibility “cannot be applied.” Plowright, who was represented by counsel

throughout the process, did not object at that point and did not seek to withdraw his

plea. Nor did he object or make any motion when the district court at sentencing

failed to afford him an acceptance of responsibility reduction.

Where a defendant failed to object in the district court to an alleged violation

of Rule 11’s plea requirements, we review only for plain error. United States v.

Brown, 586 F.3d 1342, 1345 (11th Cir. 2009). “To establish plain error, a

defendant must show there is (1) error, (2) that is plain, and (3) that affects

substantial rights.” Moriarty, 429 F.3d at 1019. To show his substantial rights

were affected, Plowright must demonstrate a reasonable probability that, but for

the alleged error, he would not have pleaded guilty. See Brown, 586 F.3d at 1345.

In Brown, we concluded that the defendant failed to show his substantial rights

were affected by wrong information he had received during his plea hearing,

because he had not objected after his presentence report corrected that

misinformation. Id. at 1346. In other words, the defendant’s silence after he

learned the truth indicated that the earlier error did not affect his decision to plead

guilty.

Even if his lack of objection to the presentence report were not dispositive,

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Plowright has otherwise failed to establish a reasonable probability that he would

not have pleaded guilty had he been properly informed. See Brown, 586 F.3d at

1345. In reviewing whether a Rule 11 error affected a defendant’s substantial

rights, we “consider the whole record.” See id. Nothing in that record suggests

Plowright would have turned down the plea deal if he had known he could not get

a two- or three-point reduction for acceptance of responsibility. The evidence

against him—which would have included testimony from at least two codefendants that Plowright had participated in the robberies and had admitted

shooting the store clerk; surveillance video of Plowright selling the same gun used

in the shooting to an undercover officer several weeks later; and traffic video of

Plowright leading police on a high-speed chase through a residential neighborhood

and a school parking lot—was such that he would have been ill-advised to take his

chances with a jury. Plowright’s sentence, severe as it was, could have been

worse. Even if Plowright was misinformed, because his substantial rights were

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 Even without a § 3E1.1 reduction, Plowright did benefit from the plea deal in two 2

important ways. First, in return for his guilty plea to the two § 924(c) counts, the government

dropped eight other counts. If convicted and sentenced within applicable guidelines on those

counts, Plowright would have received an additional consecutive sentence of 121 to 151 months. 

See 18 U.S.C. § 924(c)(1)(D)(ii) (sentences under § 924(c) cannot run concurrently with any

other sentence). Second, it should be kept in mind that Plowright faced a statutory maximum

sentence of life in prison on each § 924(c) count. The district court could have varied upward

and imposed a more severe sentence than it did; had Plowright not accepted responsibility and

expressed remorse for his crime, the court might well have done so. Cf. Brown, 586 F.3d at

1347 (district court gave defendant “the benefit of his bargain” by imposing only the minimum

sentence) (quotation marks and alteration omitted).

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not harmed there was no plain error. See Brown, 586 F.3d at 1346.

AFFIRMED.

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