### 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

------------------------------------------- No. 94-6984

--------------------------------------------

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

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus
PATRICK LAMAR HUMPHREY, Defendant-Appellant.

---------------------------------------------------------------- Appeal from the United States District Court for the Middle District of Alabama

---------------------------------------------------------------- (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 app e district court failed to meet the requirements o f when accepting his guilty plea. We see no plain e affirm.

Background

Humphrey was charged with one count of poss e base with intent to distribute, in violation of 2 and one count of using and carrying a firear m 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 distric t Humphrey in the dialogue required by Fed. R. Crim. attorney was present. The district court judge i n Humphrey of the minimum and maximum pena l count but did not inform Humphrey that the sen t served consecutively. 1not 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

4are 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 cons e appeal, Humphrey argues that the Rule 11 proceedi n because the district court judge did not tell him t h6 sentences had to be served consecutively. Humph r this argument to the district court.

Discussion

We have written that a Rule 11 proceeding mu s things. First, the proceeding must ensure the gui l of coercion. Second, the proceeding must make s u defendant understands the charges against him. proceeding must confirm that the defendant is a consequences of his guilty plea. See United State s F.2d 665, 668 (11th Cir. 1992).7 Humphrey says his Rule 11 hearing did not ensu r aware of the consequences of his guilty plea beca u court judge did not say that the sentence for the must be served consecutively to the sentence fo r 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 bec a2 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 ass o guilty pleas. The government argues that the requiremen t were met by informing Humphrey of the mini m maximum penalties for each count. Nothing in according to the government, explicitly requires defendant about the consecutive nature of mult i Other circuits appear to agree -- in varying deg r 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 does10 the result advocated by the government. See Un i Saldana , 505 F.2d 628, 628 (5th Cir. 1974) (no v i when district court fails to tell defendant that s to be imposed would be consecutive to sentence h e serving). The government also points out that H to object to later statements, informing Humph r would face consecutive sentences, made in the p r investigation report and at the sentencing he a The appropriate standard of review, given H u 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 p3 First, there must be an error. Second,

11 principle is more familiar . . . than that a cons t or a right of any other sort, may be forfeited i n well as civil cases by the failure to make timely a right before a tribunal having jurisdiction to d e United States v. Olano , 113 S. Ct. 1770, 1776 (1993) ( i quotation marks and citations omitted). An ex c rule is plain error review, codified in Fed. R. Cri m our power to review for plain error is “limited” “circumscribed.” Olano , 113 S. Ct. at 1776. Four requirements must be met before we ca n district court for plain error. 3 One of the four rthe 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.

4 See supra note 2.

12 that the error must be “plain.” Id . at 1777. A p l an error that is “obvious” and is “clear under cu r No Supreme Court decision squarely supports claim. And other circuits -- if we read the case l a favorably to Humphrey -- are split on Humphrey’ s similar arguments. 4 Also, we have never resolv e5 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 discretrial is plain error). We will consider Siegel

.

6 The 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 t h sentences would have to be served consecutively. however, treated all the facts before it as mate r decision. 6 At most, Siegel decided that -- when a d irequired 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 maximu m associated with three counts, of the mandatory m sentences associated with two counts, and of the nature of a sentence associated with one count16 collectively amount to reversible error. Siegel d i as Humphrey insists it did decide -- that each one standing alone, would justify reversing the dist r more specific, the Siegel court did not decide that like those in the present case (involving manda consecutive sentences only) amounted to rever s Because the Siegel case is not materially simila r case, no plain error based on Siegel is present i n Without precedent directly resolving Humphr e claim, we conclude the district court’s alleged err “obvious” or “clear under current law.” See Unit e Thompson , 82 F.3d 849, 856 (9th Cir. 1996) (“Becaus e17 split, the lack of controlling authority, and the f a at least some room for doubt about the outcome o cannot brand the court’s failure to exclude the e v error’ ”) (footnote omitted). The error in this c a 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.