FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 9, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-10919

Non-Argument Calendar

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D. C. Docket No. 05-00355-CR-T-17-MAP

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

LEON KING, 

a.k.a. PK, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Middle District of Florida

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(September 9, 2008)

Before ANDERSON, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:
 Almost one year after he was sentenced, King filed a 28 U.S.C. § 2255 motion to 1

vacate, set aside, or correct his sentence. In the motion, King claimed ineffective assistance of

counsel because his lawyer refused to file his appeal. The district court granted King’s motion

because it determined that an out-of-time appeal was warranted. Thus, the court vacated King’s

prior sentence and reimposed King’s 188-month sentence.

2

Leon King appeals his conviction for possession with intent to distribute

five grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1),(b)(1)(A)(iii). 

King pleaded guilty to one count of possession with intent to distribute

cocaine in exchange for the dismissal of both conspiracy of the same and three

additional counts of possession with intent to distribute. The Government also

agreed to withdraw an § 851 Information that could have lead to King’s serving a

life sentence, and the Government also stated that it would agree to an acceptance

of responsibility reduction. 

At sentencing, the district court sentenced King to the Sentencing

Guidelines minimum of 188 months’ imprisonment. Following the sentencing, the

district court ordered forfeiture of “any and all assets and property, or portions

thereof, subject to forfeiture, which are in the possession or control of the

defendant or the defendant’s nominees.” The court did not, however, follow any

of the proper forfeiture procedures, nor did the Government seek to obtain

forfeiture. King did not object to the forfeiture order.1
3

On appeal, King asserts that the district court erred in two ways: (1) that the

district court did not sufficiently comply with Federal Rule of Criminal Procedure

11 because it (a) failed to advise King of the consequences of pleading guilty,

namely that his personal property was subject to forfeiture; (b) improperly

participated in the plea negotiations by telling King “it is the court’s custom . . . to

sentence you at the low end of the guideline range, whatever that is;” (c) failed to

advise King that he could be sentenced as a career offender; and (d) failed to

advise King that his sentence could be based on more drugs than the one count to

which he pleaded guilty; and (2) that the district court failed to comply with Rule

32.2 because it did not identify which assets were subject to forfeiture before it

signed a forfeiture order.

Based upon a review of the record, we conclude that King’s arguments are

without merit. First, King failed to object to the Rule 11 errors during the plea

colloquy; therefore, we review them for plain error. 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

(1) error (2) that is plain and (3) that it affects substantial rights. Id. The Supreme

Court has held that in order to meet the third prong, a “defendant who seeks

reversal of his conviction following a guilty plea on the ground that the district
4

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.

Dominquez Benitez, 542 U.S. 74, 83 (2004). Additionally, once the defendant has

established the first three prongs, the reviewing court may then exercise its

jurisdiction and correct the error, but only if it “seriously affects the fairness,

integrity, or public reputation of the judicial proceedings.” United States v. Olano,

507 U.S. 725, 732 (1993).

Here, assuming without deciding that the district court erred in its Rule 11

colloquy, King has not demonstrated (nor has he even argued) that but-for the

alleged Rule 11 errors he would not have pleaded guilty. Similarly, nothing in the

record indicates that he would not have pleaded guilty. Indeed, there was

overwhelming evidence of King’s guilt and, as part of the plea, the Government

withdrew a § 851 Information which could have resulted in King’s serving a life

sentence. He, therefore, fails to meet his burden on plain error review.

With regard to his second contention regarding the forfeiture order, King

also fails. Again, we review this alleged error under the plain error standard. See

United States v. Mangaroo, 504 F.3d 1350, 1353 (11th Cir. 2007). As discussed

above, the third prong of the plain error analysis requires King to show that the

error affected his substantial rights. Although the district court failed to follow the
5

procedures set forth in Rule 32.2 (including identifying the specific property to be

forfeited), no property has been forfeited and the Government has not sought

forfeiture. Thus, King has suffered no prejudice. 

Accordingly, we AFFIRM.