FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 14, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-15687

Non-Argument Calendar

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D. C. Docket No. 04-00243-CR-T-17-MSS

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus

JAIME SEIDEL VIVEROS, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(October 14, 2008)

Before BARKETT, HULL and PRYOR, Circuit Judges.

PER CURIAM:

After pleading guilty, Jaime Seidel Viveros appeals his convictions for: (1)

aiding and abetting the possession with intent to distribute five kilograms or more
of cocaine while on board a vessel subject to the jurisdiction of the United States,

in violation of 46 U.S.C. App. § 1903(a) and (g), 18 U.S.C. § 2, and 21 U.S.C.

§ 960(b)(1)(B)(ii) (Count One); and (2) conspiring to possess with intent to

distribute five kilograms or more of cocaine while on board a vessel subject to the

jurisdiction of the United States, in violation of § 1903(a), (g), (j) (Count Two).1

After review, we affirm.

I. BACKGROUND

Viveros was a crew member on a vessel apprehended by the United States

Coast Guard after the vessel had supplied fuel and food to a “go fast” boat

containing at least 600 kilograms of cocaine. Viveros’s indictment charged him

with the two drug counts and contained a separate forfeiture provision that was

entitled, in bold print, “Forfeiture Allegation” and was over a full page of the

indictment. That forfeiture provision stated, inter alia, that Viveros’s property

“constituting or derived from any proceeds” of the crimes charged or “used or

intended to be used in any manner or part to commit and to facilitate the

commission of such violations” was subject to forfeiture under 46 U.S.C. App.

Viveros was indicted and convicted under the Maritime Drug Law Enforcement Act 1

(“MDLEA”), 46 U.S.C. App. §§ 1901-1904. After Viveros’s judgment was entered, Congress

recodified the MDLEA, which now can be found at 46 U.S.C. §§ 70501-70507. See Act of Oct.

6, 2006, Pub. L. No. 109-304, § 10(2), 120 Stat. 1485, 1685-89. Therefore, we cite to the preamendment version of the MDLEA.

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§ 1904(a), 21 U.S.C. § 881(a) and 28 U.S.C. § 2461(c).

Before his plea hearing, Viveros, represented by counsel, signed and filed a

written plea agreement in which he agreed to plead guilty to Count One of the

indictment. Among other things, the written plea agreement contained a provision

stating that Viveros agreed to “forfeit to the United States immediately and

voluntarily any and all assets and property or portions thereof subject to

forfeiture.” Viveros also agreed that “the conduct giving rise to the indictment in

this case provides a sufficient factual and statutory basis for the forfeiture of real

and/or personal property sought by the government.”

At the plea hearing, however, Viveros withdrew his plea agreement and pled

guilty to both counts of the indictment. During the plea colloquy, the magistrate

judge asked Viveros questions about his decision to withdraw his plea agreement. 

Among other things, the magistrate judge asked Viveros whether he understood

the contents of the plea agreement he had decided to withdraw, and Viveros

responded, “Yes.” 

In advising Viveros of the consequences of his guilty plea, the district court

informed Viveros of the penalties for the two counts, including the mandatory

minimum and statutory maximum terms of imprisonment; the possibility of a fine

and a special assessment; the terms of supervised release and the fact that Viveros

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was subject to deportation following his prison term. However, the district court

did not advise Viveros of the forfeiture provision in the indictment.

The magistrate judge found that Viveros’s plea was knowing and voluntary

and supported by an independent factual basis and recommended that the district

court accept Viveros’s guilty plea. Viveros did not object to the magistrate

judge’s recommendation, and the district court accepted Viveros’s guilty plea.

The presentence investigation report (“PSI”) stated, inter alia, that the

indictment contained a forfeiture provision. Viveros did not object to the PSI. At

the sentencing hearing, the district court asked Viveros if he had had an

opportunity to read and discuss the PSI with his attorney, and Viveros responded,

“Yes” and stated that he had no objections to the PSI. Viveros was sentenced to

135 months’ imprisonment on each count. The district court ordered “that

[Viveros] forfeit to the United States immediately and voluntarily any and all

assets and property or portions thereof subject to forfeiture.” Viveros appealed.

II. DISCUSSION

On appeal, Viveros argues that his guilty plea is invalid because the district

court violated Federal Rule of Criminal Procedure 11 when it failed to advise him

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that his property might be subject to forfeiture.2

A court accepting a guilty plea must comply with Federal Rule of Criminal

Procedure 11 and, in particular, address the three “core concerns” by ensuring that

(1) the guilty plea is free from coercion, (2) the defendant understands the nature

of the charges and (3) the defendant understands the consequences of his plea. 

Fed. R. Crim. P. 11(b); United States v. James, 210 F.3d 1342, 1344 (11th Cir.

2000). “To ensure compliance with the third core concern, Rule 11(b)(1) provides

a list of rights and other relevant matters about which the court is required to

inform the defendant prior to accepting a guilty plea, including . . . the possibility

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

see also Fed. R. Crim P. 11(b)(1)(J).3

Where, as here, the defendant fails to object to a Rule 11 violation in the district court, 2

we review for plain error. United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003). 

Under plain error review, there must be (1) error (2) that is plain and (3) affects substantial rights. 

Id. If these three conditions are met, we may exercise our discretion and correct the error if it

“seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id.

(quotation marks omitted). In determining whether a Rule 11 error in the plea colloquy affects a

defendant’s substantial rights, we may refer to the entire record. United States v. Vonn, 535 U.S.

55, 74, 122 S. Ct. 1043, 1054-55 (2002). Furthermore, to obtain reversal of a conviction on Rule

11 grounds, the defendant 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 (2004).

Rule 11(b)(1) provides: 3

Before the court accepts a plea of guilty or nolo contendere, the defendant may be

placed under oath, and the court must address the defendant personally in open court. 

During this address, the court must inform the defendant of, and determine that the

defendant understands, the following:

. . . 

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It is undisputed that the district court did not inform Viveros that his

property might be subject to forfeiture. However, we conclude that the error did

not affect Viveros’s substantial rights. A review of the record as a whole

indicates that Viveros was aware that he would have to forfeit any property subject

to the drug forfeiture statutes. First, Viveros’s indictment contained a forfeiture

provision. Second, Viveros’s withdrawn plea agreement consented to forfeiture, 4

and Viveros stated at the plea hearing that he understood the contents of the

withdrawn plea agreement.

Additionally, there is no evidence in the record that, but for a discussion of

forfeiture at the plea colloquy, Viveros would have pled not guilty. Viveros

expressed no confusion or hesitation about the penalties for the crimes charged or

the consequences of his guilty plea. At the plea colloquy Viveros acknowledged

all of his trial rights, but stated, “I’m not going to do all that. I accept my guilt.” 

At sentencing, Viveros stated that he understood the contents of the PSI, which

discussed the forfeiture provision, and had no objections to them. Thus, nowhere

(J) any applicable forfeiture;

Fed. R. Crim. P. 11(b)(1)(J). We point this out so that, in future cases, the magistrate judge

should be careful to discuss not only the substantive counts, but also any forfeiture allegations.

We note that the arraignment minutes indicate that the court advised Viveros of the 4

charges. However, because there is no transcript of the proceedings in the record, we do not

know whether Viveros was advised at that time of the forfeiture provision in the indictment.

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in the record does it appear Viveros would have pled differently had he been

advised of the forfeiture provision at the time of his plea. 

Finally, although the district court included an order of forfeiture as part of

Viveros’s sentence, the government has not instituted any proceedings to seize any

specific property of Viveros’s. Indeed, the government contends that the district

court’s “generic” forfeiture order included in the judgment is invalid because it

neither specified any particular property to be forfeited nor made a finding of a

nexus between any property and the criminal conduct as required by Federal Rule

of Criminal Procedure 32.2.

For these reasons, the district court’s failure to comply with the technical

requirements of Rule 11(b) by advising Viveros of the applicable forfeiture

provision was not plain error that affected Viveros’s substantial rights.

AFFIRMED.

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