IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-10666

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MICHAEL GENE WILLIAMS,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 7:09-CR-36-1

Before JOLLY, SMITH, and GRAVES, Circuit Judges.

PER CURIAM:*

Michael Gene Williams appeals his guilty plea convictions for being a felon

in possession of a firearm (count one), possession of cocaine base with intent to

distribute (count two), and possession of a firearm in furtherance of a drugtrafficking offense (count three). He argues that his guilty plea was not knowing

and voluntary because the magistrate judge did not advise him of the correct

statutory maximum sentence for counts one and two. Because Williams did not

raise this issue in the district court, review is limited to plain error. See Puckett

United States Court of Appeals

Fifth Circuit

F I L E D

December 23, 2011

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 10-10666

v. United States, 129 S. Ct. 1423, 1429 (2009). The Government has filed a

motion to dismiss or summarily affirm, and to remand for correction of the

judgment, or alternatively for an extension of time to file a brief.

At rearraignment at the magistrate judge’s request,the prosecutor advised

Williams that the statutory maximum sentence for count one was life

imprisonment; the actual statutory maximum sentence was 20 years. Because

Williams’s actual 120-month sentence for count one was less than the life

imprisonment term of which he was advised at rearraignment, he has not shown

that the district court’s error affected his decision to plead guilty to count one. 

See United States v. Williams, 120 F.3d 575, 578 (5th Cir. 1997); United States

v. Pierce, 5 F.3d 791, 793 (5th Cr. 1993). Although the magistrate judge also

incorrectly advisedWilliams that the statutory maximum sentence for count two

was 20 years, Williams was aware of the correct statutory maximum sentence

because the plea agreement, which he read and signed prior to rearraignment,

correctly stated that the statutory maximum sentence for count two was 40

years. Moreover, as in United States v. Vasquez-Bernal, 197 F.3d 169, 170-71

(5th Cir. 1999), the Presentence Report, which Williams reviewed and discussed

with counsel, correctly stated that the statutory maximum sentence for count

two was 40 years; Williams received a reduction for acceptance of responsibility;

and he did not allege or offer any evidence to show that he would not have

pleaded guilty had he been advised of the correct statutory maximum sentence. 

Because there is no evidence that the magistrate judge’s error affected

Williams’s decision to plead guilty to these counts, Williams has not shown that

the error affected his substantial rights. See Vasquez-Bernal, 197 F.3d at 171;

see also Williams, 120 F.3d at 578; Pierce, 5 F.3d at 793; Puckett, 129 S. Ct. at

1429.

Williams argues that the judgment of conviction incorrectly states that he

was convicted of violating 18 U.S.C. § 924(e) and argues that the case should be

remanded for correction of the judgment to reflect that he was convicted under

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No. 10-10666

§ 924(a)(2). Because the reference to § 924(e) was a clerical error and the

Government concurs that the judgment should be corrected, the case is

remanded for correction of the error. See FED. R. CRIM. P. 36; see also 28 U.S.C.

§ 2106; United States v. Powell, 354 F.3d 362, 371-72 (5th Cir. 2003).

Williams’s argument that he should be resentenced under the Fair

Sentencing Act is barred by his waiver of his right to appeal, which Williams

concedes was knowing and voluntary and, therefore, enforceable. Because the

Government seeks to enforce the waiver and none of the waiver’s exceptions are

applicable, Williams’s claim is barred by the appeal waiver. See United States

v. McKinney, 406 F.3d 744, 746 (5th Cir. 2005).

AFFIRMED AS MODIFIED; MOTION GRANTED; REMANDED FOR

CORRECTION OF JUDGMENT.

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