In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-2442

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

IVORY GRIFFIN,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northen District of Indiana, South Bend Division.

No. 04 CR 105—Allen Sharp, Judge.

____________

ARGUED JANUARY 14, 2008—DECIDED APRIL 4, 2008

____________

Before POSNER, KANNE, and WILLIAMS, Circuit Judges.

KANNE, Circuit Judge. Ivory Griffin pled guilty to one

count of possessing an unregistered firearm, 26 U.S.C.

§ 5861(d), and one count of possessing a firearm after

having been previously convicted of a felony, 18 U.S.C.

§ 922(g)(1). The district court sentenced him to a total of

146 months’ imprisonment on both counts. On appeal,

Griffin seeks to withdraw his guilty pleas on the basis that

the court conducted an incomplete plea colloquy. See Fed.
2 No. 07-2442

R. Crim. P. 11(b). Griffin also challenges his sentence on the

grounds that the court (1) denied him his right to allocution

before imposing sentence; and (2) inappropriately entered

a corrected judgment. We affirm Griffin’s convictions.

However, we vacate his sentence and remand for

resentencing.

I. HISTORY

The facts are undisputed. In the fall of 2002, Indiana State

Troopers stopped Griffin for speeding on the Indiana Toll

Road in St. Joseph County. After Griffin consented to a

search of his Pontiac, the officers found in the car’s trunk

a sawed-off shotgun and ammunition. The officers placed

Griffin under arrest, and a grand jury later indicted him on

charges of possessing the firearm and ammunition. See 18

U.S.C. § 922(g)(1); 26 U.S.C. § 5861(d). Griffin eventually

pled guilty to the charges without the benefit of a plea

agreement.

At his plea hearing, the district court conducted the

colloquy required under Fed. R. Crim. P. 11(b) before

accepting Griffin’s guilty pleas. Specifically, the court

explained to Griffin that he had the right to plead not

guilty; to be tried before a jury; and to have counsel, both

before the district court and on appeal. See Fed. R. Crim. P.

11(b)(1)(B), (b)(1)(C), (b)(1)(D). The court also informed

Griffin that, had he elected to proceed to trial, the government could not have forced him to testify, and he would

have had the right to confront and cross-examine witnesses who testified against him. See Fed. R. Crim. P.

11(b)(1)(E). After the court advised Griffin that he was

waiving those rights by pleading guilty, see Fed. R. Crim.

P. 11(b)(1)(F), it outlined the nature and essential elements
No. 07-2442 3

of each of the firearms charges brought against him, stated

the maximum possible penalties to which he was exposed,

and explained its obligation to impose a special assessment, see Fed. R. Crim. P. 11(b)(1)(G), (b)(1)(H), (b)(1)(L). 

Despite conducting an otherwise thorough Rule 11

colloquy, the district court did not specifically advise

Griffin that he would have had the right to present evidence or that he could have compelled the attendance of

witnesses through the court’s subpoena power. See Fed. R.

Crim. P. 11(b)(1)(E). And although the court informed

Griffin that he would “be sentenced under the appropriate

[Sentencing] Guidelines,” the court did not explain that it

had the authority “to depart” from the applicable guidelines range. See Fed. R. Crim. P. 11(b)(1)(M). 

Neither Griffin’s counsel, nor the government, informed

the court that it overlooked some portions of the colloquy—a point to which we will later return. More importantly, however, Griffin did not object to the colloquy as it

was conducted. Instead, Griffin reaffirmed that he was

pleading guilty knowingly and voluntarily, and that he

was, in fact, guilty of the two firearms charges. The court

then accepted Griffin’s guilty pleas and scheduled a

sentencing hearing.

The district court opened Griffin’s sentencing hearing by

calculating the guidelines imprisonment range to which he

was subject—130 to 162 months. Immediately after the

court determined the range, however, it stated that it had

“considered the entire record in this case,” and based on

that review it was “the intent of [the] court” to sentence

Griffin to 73 months’ imprisonment on the felon-in-possession count, and another 73 months for the unregistered

firearm count, for a total of 146 months’ imprisonment. The

court then stated, “Mr. Griffin has a right to address me
4 No. 07-2442

directly, and I will certainly afford him that right.” Griffin

did not object. Instead, he said, “Well, um, there ain’t too

much I can say to change your mind. I just want to take this

opportunity to apologize to my wife for hurting her

feelings and, um, tell her I’m sorry I ain’t going to be there

for her. That’s really it.” Although the court later allowed

Griffin’s attorney and the government’s counsel to present

arguments regarding the appropriate sentence to impose,

it nevertheless entered the 146-month sentence “as indicated.” 

II. ANALYSIS

On appeal, Griffin seeks to withdraw his guilty pleas on

the ground that the district court conducted a deficient

Rule 11 colloquy. Specifically, he points to the court’s

failure to advise him that he would have had the right to

present evidence, that he could have compelled the attendance of witnesses through the court’s subpoena power,

and that the court had the authority “to depart” from its

calculated guidelines range. See Fed. R. Crim. P. 11(b)(1)(E),

(b)(1)(M). 

Because Griffin did not challenge the sufficiency of the

colloquy before the district court, our review is for plain

error. See Fed. R. Crim. P. 52(b); United States v. Vonn, 535

U.S. 55, 59 (2002); United States v. Villarreal-Tamayo, 467

F.3d 630, 632 (7th Cir. 2006). Under this stringent standard

of review, Griffin shoulders the burden of pointing to

evidence showing that the district court’s incomplete

colloquy affected his “substantial rights.” See Fed. R. Crim.

P. 11(h) (“A variance from the requirements of this rule is

harmless error if it does not affect substantial rights.”); Fed.

R. Crim. P. 52(b) (“A plain error that affects substantial

rights may be considered even though it was not brought

to the court’s attention.”); United States v. Dominguez
No. 07-2442 5

Benitez, 542 U.S. 74, 83 (2004); United States v. Lee, 399 F.3d

864, 866 (7th Cir. 2005). In other words, Griffin must show

that, but for the district court’s omissions, there was a reasonable probability that he would not have pled guilty.

See Dominguez Benitez, 542 U.S. at 83; Lee, 399 F.3d at 866. 

Griffin, however, highlights no evidence showing that he

would not have pled guilty; he merely asserts, without

elaboration, that the rights the district court overlooked are

“fundamental” and “affect the fairness of the proceedings.”

And after reviewing the record, we see nothing suggesting

that Griffin would not have pled guilty, particularly

when the evidence that he had a previous felony conviction and possessed an unregistered shotgun was overwhelming, see United States v. Parker, 368 F.3d 963, 969

(7th Cir. 2004); United States v. Kelly, 337 F.3d 897, 905 (7th

Cir. 2003), and when he informed the court that he was

pleading guilty to the firearms charges because he was, in

fact, guilty, see United States v. Chavers, No. 06-4303, slip op.

at 4 (7th Cir. Jan. 25, 2008) (“[T]he defendant’s statements

at the plea colloquy are presumed to be true . . . .”); United

States v. Logan, 244 F.3d 553, 558 (7th Cir. 2001) (same).

Thus, Griffin’s unsupported assertion of error is insufficient to prevail on appeal.

This is not the first time that we have addressed a

challenge to a Rule 11 colloquy when counsel failed at the

plea hearing to inform the district court of its omissions.

And it is difficult to understand why counsel here did not

help the court avoid correctable omissions. Confusion over

Rule 11’s requirements should not be the reason; the Rule

is not new, unclear, or even difficult to access. Not only

should counsel for the government, as well as for the

defendant, be familiar with Rule 11 before even walking

into a plea hearing, but it would also be a good practice for
6 No. 07-2442

them to have a copy of the Rule handy so they can follow

along with the court’s colloquy. That way, if the court

overlooks one of the Rule’s provisions, counsel can bring

the omission to the court’s attention and avoid any later

grief. We would like to think that any sentencing judge

would not only correct the omissions that he or she made

while conducting the colloquy, but would appreciate the

opportunity to do so. 

Moreover, counsel have nothing to gain by remaining

silent about the district court’s omissions. The government

will not lose its conviction by promptly informing the court

that the colloquy was incomplete, and it can only help itself by staving off a potential appeal on the issue. And

although defense counsel might remain silent with the

assumption that the incomplete colloquy will create a

viable issue to appeal, given that our review under

such circumstances would be for plain error, such an

assumption, much more often than not, is a quixotic pipe

dream. See Villarreal-Tamayo, 467 F.3d at 632 (“As a practical matter, it is incredibly difficult for a defendant to

prove that a district court plainly erred when accepting a

guilty plea.”); see also Parker, 368 F.3d at 967-68; United

States v. Blalock, 321 F.3d 686, 688-89 (7th Cir. 2003); United

States v. Martinez, 289 F.3d 1023, 1029 (7th Cir. 2002); United

States v. Jeffries, 265 F.3d 556, 557-58 (7th Cir. 2001); United

States v. Gilliam, 255 F.3d 428, 433-34 (7th Cir. 2001). 

The fact remains, however, that Rule 11 is controlling law

in federal criminal matters. See Fed. R. Crim. P. 1(a)(1). As

such, counsel have a professional duty to speak up if they

notice that the court happens to forget a portion of the

colloquy. See Ind. Rules of Prof’l Conduct R. 3.3(a)(2) (“A

lawyer shall not knowingly fail to disclose to the tribunal

legal authority in the controlling jurisdiction known to the
No. 07-2442 7

lawyer to be directly adverse to the position of the client

and not disclosed by opposing counsel.”); see also Model

Rules of Prof’l Conduct R. 3.3(a)(2) (same); Ill. Sup. Ct.

Rules, Art. VIII, R. 3.3(a)(3) (same); Wis. Sup. Ct. Rules, Ch.

20(b), R. 20:3.3(a)(3) (same). 

With that said, we turn to Griffin’s challenge to his

sentence, which, unlike his attempt to withdraw his guilty

pleas, has merit. Griffin argues that his sentence should be

vacated and his case remanded for resentencing on

the ground that the district court violated his right to a

meaningful allocution by announcing the sentence it

intended to impose before affording him the opportunity

to speak. The government agrees. We do as well; a district

court plainly errs by announcing its intended sentence

before a criminal defendant’s allocution. See United States

v. Luepke, 495 F.3d 443, 452 (7th Cir. 2007); United States v.

Groves, 470 F.3d 311, 329-30 (7th Cir. 2006); see also Fed. R.

Crim. P. 32(i)(4)(A)(ii). Accordingly, we need not address

Griffin’s other challenge to his sentence. 

III. CONCLUSION

Griffin’s convictions are AFFIRMED. His sentence, however, is VACATED, and his case is REMANDED to the district

court for resentencing.

USCA-02-C-0072—4-4-08