FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 1/06/99 

 THOMAS K. KAHN 

 CLERK

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 94-6984

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D. C. Docket No. CR-94-92-N 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PATRICK LAMAR HUMPHREY,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Alabama

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(January 6, 1999)

Before EDMONDSON and BIRCH, Circuit Judges, and MORAN*, Senior

District Judge.

______________

* Honorable James B. Moran, Senior U.S. District Judge for the

Northern District of Illinois, sitting by designation.

EDMONDSON, Circuit Judge:
2

Appellant, Patrick L. Humphrey, argues on appe

district court failed to meet the requirements of

when accepting his guilty plea. We see no plain e

affirm.

Background

Humphrey was charged with one count of posse

base with intent to distribute, in violation of 2

and one count of using and carrying a firearm

trafficking crime, in violation of 18 U.S.C. § 924(

pled guilty to both counts. 
 1

The following exchange took place at the

Rule 11 proceeding:

The Court: Do you understand that the

maximum possible penalty under Count

one is a fine of not more than two

million dollars, or twice the gross loss to

a victim or twice the gross gain to a

defendant, whichever is greater; a term

of imprisonment of not less than five

years and not more than forty years, or

both fine and imprisonment; a period of

3

Before accepting Humphrey’s plea, the district

Humphrey in the dialogue required by Fed. R. Crim. 

attorney was present. The district court judge in

Humphrey of the minimum and maximum penal

count but did not inform Humphrey that the sent

served consecutively.1
not less than four years of supervised

release. The Court would also be required

to require you to pay an assessment fee

of fifty dollars on this Count. If there is

any victim, the Court could order [you] to

make restitution to any victim.

Under Count two you could be assessed

a fine of not more than two hundred

and fifty thousand dollars or twice the

gross loss to the victim or twice the gross

gain to the defendant, whichever is

greater. There is a mandatory five-year

sentence as to Count two. You could be

fined and have the mandatory sentence

imposed. And there is a period of not

more than three years of supervised

release for this offense. The Court could

require you to make restitution to a

victim. The Court would also have to

impose a fifty-dollar assessment as to

this second count.

Now, both of these counts are what

4
are known as guidelines cases. Have you

had any explanation as to what a

guidelines case means.

(Discussion between defendant and

defense attorney).

Defendant: Yes, sir.

. . . . 

The Court: Do you understand all of

these maximum possible penalties?

Defendant: Yes.

5

Later, Humphrey was sentenced to five years

imprisonment on each count, to be served conse

appeal, Humphrey argues that the Rule 11 proceedin

because the district court judge did not tell him th
6

sentences had to be served consecutively. Humphr

this argument to the district court.

Discussion

We have written that a Rule 11 proceeding mus

things. First, the proceeding must ensure the guil

of coercion. Second, the proceeding must make su

defendant understands the charges against him.

proceeding must confirm that the defendant is a

consequences of his guilty plea. See United States

F.2d 665, 668 (11th Cir. 1992).
7

Humphrey says his Rule 11 hearing did not ensur

aware of the consequences of his guilty plea becau

court judge did not say that the sentence for the

must be served consecutively to the sentence for

possession count. Humphrey relies on our decisio

States v. Siegel, 102 F.3d 477 (11th Cir. 1996). Siegel

court must advise a defendant of the maximum

“mandatory nature” of the penalties associated 

to satisfy Rule 11. 102 F.3d at 482. Humphrey’s cla

failing to tell him about the consecutive nature 

sentences -- the district court violated Rule 11 beca
 2

See, e.g., United States v. Burney, 75 F.3d

442, 445 (8th Cir. 1996) (no requirement

to tell defendant about mandatory

consecutive sentences); United States v.

Ospina, 18 F.3d 1332, 1334 (6th Cir. 1994)

8

told the mandatory nature of the penalties asso

guilty pleas.

The government argues that the requirement

were met by informing Humphrey of the minim

maximum penalties for each count. Nothing in

according to the government, explicitly requires

defendant about the consecutive nature of multi

Other circuits appear to agree -- in varying degr

government’s general position.2 Also, a Fifth C
(same); see also Faulisi v. Daggett, 527

F.2d 305, 309 (7th Cir. 1975) (no

requirement to tell defendant that

federal sentence may, at district court’s

discretion, run consecutively to state

sentence); Wall v. United States, 500 F.2d

38, 39 (10th Cir. 1974) (no requirement to

tell defendant about possible consecutive

sentences if sentences are within

maximum sentence stated at Rule 11

hearing); Paradiso v. United States, 482

F.2d 409, 415 (3rd Cir. 1973) (no

requirement to inform defendant that

multiple sentences might, at discretion

of district court, be served consecutively);

United States v. Vermeulen, 436 F.2d 72,

75 (2d Cir. 1970) (same). But see United

States v. Neely, 38 F.3d 458, 460 (9th Cir.

1993) (defendant must be told that his

federal sentence must run consecutively

to state sentence).

9

that is one of our precedents suggests -- but does 
10

the result advocated by the government. See Uni

Saldana, 505 F.2d 628, 628 (5th Cir. 1974) (no vi

when district court fails to tell defendant that s

to be imposed would be consecutive to sentence he

serving). The government also points out that H

to object to later statements, informing Humphr

would face consecutive sentences, made in the pr

investigation report and at the sentencing hea

The appropriate standard of review, given Hu

failure to object in the district court to the cons

sentences, is plain error. See Fed. R. Crim. P. 52(b

v. Quinones, 97 F.3d 473, 475 (11th Cir. 1996). “No p
 3

First, there must be an error. Second,

11

principle is more familiar . . . than that a const

or a right of any other sort, may be forfeited in

well as civil cases by the failure to make timely a

right before a tribunal having jurisdiction to de

United States v. Olano, 113 S. Ct. 1770, 1776 (1993) (i

quotation marks and citations omitted). An exc

rule is plain error review, codified in Fed. R. Crim

our power to review for plain error is “limited”

“circumscribed.” Olano, 113 S. Ct. at 1776. 

Four requirements must be met before we can

district court for plain error.3 One of the four r
the error must be plain. Third, the error

must affect substantial rights of the

defendant. Fourth, the error must

seriously affect the fairness, integrity,

or public reputation of a judicial

proceeding. Olano, 113 S. Ct. at 1776. We

address only the second requirement in

today’s opinion.

 4See supra note 2.

12

that the error must be “plain.” Id. at 1777. A pl

an error that is “obvious” and is “clear under cur

No Supreme Court decision squarely supports 

claim. And other circuits -- if we read the case la

favorably to Humphrey -- are split on Humphrey’s

similar arguments.4 Also, we have never resolve
 5

The Court, in Olano, specifically declined

to address “the special case where the

error was unclear at the time of trial

but becomes clear on appeal because the

applicable law has been clarified.” 113 S. Ct.

at 1777. After Olano, we have

considered decisions made between the

alleged error of the district court and the

appeal when deciding if an error is

plain. See United States v. Antonietti, 86

F.3d 206, 208-09 (11th Cir. 1995) (sentence

based on definition of “marijuana

seedling,” when definition changed in

defendant’s favor after sentencing, is

plain error) (dicta or unclear

alternative holding); United States v.

Walker, 59 F.3d 1196, 1198 (11th Cir. 1995)

(conviction based on a statute later

ruled unconstitutional after defendant’s

13

of these circumstances point to no plain error 

 In Siegel,

5

 the district court abused its discre
trial is plain error). We will consider

Siegel.

 6The Siegel court took into account all of

these facts: 

It is undisputed that neither

the district court nor the

government informed Siegel

during the Rule 11 proceedings of the

twenty-year maximum sentences

that he could receive on Counts

Four, Five, and Six. Moreover, it is

uncontroverted that neither the

district court nor the government

advised Siegel that he would be

14

failing to inform the defendant, among other th

sentences would have to be served consecutively. 

however, treated all the facts before it as mater

decision.6 At most, Siegel decided that -- when a di
required to serve a five-year

mandatory minimum prison

sentence if he pled guilty to the

offense charged in Count Seven. 

Further it is undisputed that the

district court failed to advise

Siegel that if he pled guilty to Count

Eight he would be required to serve

a twenty-year mandatory

minimum sentence, to be served

consecutively to the sentences

imposed on Counts One through

Seven. 

Siegel, 102 F.3d at 482.

15

does not inform the defendant of the maximum

associated with three counts, of the mandatory m

sentences associated with two counts, and of the

nature of a sentence associated with one count
16

collectively amount to reversible error. Siegel di

as Humphrey insists it did decide -- that each one

standing alone, would justify reversing the distr

more specific, the Siegel court did not decide that

like those in the present case (involving manda

consecutive sentences only) amounted to revers

Because the Siegel case is not materially similar

case, no plain error based on Siegel is present in

Without precedent directly resolving Humphre

claim, we conclude the district court’s alleged err

“obvious” or “clear under current law.” See Unite

Thompson, 82 F.3d 849, 856 (9th Cir. 1996) (“Because
17

split, the lack of controlling authority, and the fa

at least some room for doubt about the outcome o

cannot brand the court’s failure to exclude the ev

error’ ”) (footnote omitted). The error in this ca

an error), therefore, is not plain. See Olano, 113 S

Without a “plain” error, we lack authority to reverse the district

court. See id. We express no view as to whether the district

court committed an error other than a plain error.

AFFIRMED.