[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

_____________________ ___ No. 17

- 10745 Non

- Argument Calendar

________________________ D.C. Docket No. 1 : 1 5

- cr - 00443

- SCJ

- JFK

- 1

UNITED STATES OF AMERICA , Plaintiff

- Appell ee ,
versus CHERYL SINGLETON , Defendant

- Appell ant

.

________________________ Appeal from the United States District Court for the Northern District of Georgia

________________________ (March 21, 2018) Before WILLIAM PRYOR , JORDAN , and ANDERSON , Circuit Judges

. PER CURIAM : Cheryl Singleton pled guilty to one count of wire fraud in violation of 18 U.S.C. § 1343

. On appeal, Ms. Singleton argues that her guilty plea was not

Case: 17-10745 Date Filed: 03/21/2018 Page: 1 of 62 knowing and voluntary because the district court failed to conduct an additional Rule 11 plea colloquy after she and the government entered into a joint s tipulation regarding the p re - s entence investigation r eport. As part of the joint stipulation, Ms. Singleton agreed to withdraw and waive all objections to the r eport , which she

c ontends constituted a modification of the plea agreement

. Because there was no modification to the plea agreement , we affirm.
I Ms. Singleton owned and operated a tax preparation business in Atlanta, Georgia , through which she perpetrated extensive fraudulent schemes result ing in a loss to the government of approximately $20 mi llion. Ms. Singleton also personally defrauded several businesses through bank loan and credit card scams. Consequently , Ms. S ingleton was indicted on numerous charges of wire fraud (18 U.S.C. § 1343 ) , aggravated identity theft (18 U.S.C. § § 1028 A (a)(1) , (c)(5) ) , and submitting false claims against the IRS ( 18 U.S.C. § 287 )

. In August of 2016, Ms. Singleton pled guilty to one count of wire fraud in violation of 18 U.S.C. § 1343

. As part of Ms. Singleton’s negotiated plea agreement, the government agreed to dismiss 34 counts against Ms. Singleton, to bring no additional charges against her , and to recommend that she receive a three

level reduction for acceptance of responsibility u nder the Sentencing Guidelines

. See U

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. § 3E1.1. Ms. Singleton agreed , among other things, to waive her

Case: 17-10745 Date Filed: 03/21/2018 Page: 2 of 63 right s of appeal and collateral attack as to her conviction and sentence

. The plea agreement was silent as to the appropriate Sentencing Guideline s range and acknowledged that both parties reserved the right to make recommendations regarding the application of the guidelines

. T he district court established that Ms. Singleton understood t he terms of her plea agreement and that her guilty plea was knowing and voluntary during a Rule 11 plea colloquy

. A fter receiving the p re - s entence investigation r eport in October of 2016 , Ms. Singleton and the government each filed objections to the Sentencing Guideline s calculation

. 1 In January of 2017, o ne week after Ms. Singleton filed her objections, both parties agreed to withdraw and waive their objections, and the
g overnment agreed to recommend a sentence of no greater than 150 months’ imprisonment. The parties memorialized their agreement in a written joint stipulation which they filed with the court. At the sentencing hearing, the district court accepted the parties’ joint stipulation, adopted the pre - sentence investigation report , and concluded that the applicable Sentencing Guidelines range was 188

– 235 months’ imprisonment. Ms.

1 Specifically, in November of 2016 , the governm ent objected to the loss amount and the failure to apply an obstruction of justice enhancement, and withdrew its recommendation that Ms. Singleton receive a third point for acceptance of responsibility because Ms. Singleton violated her plea agreement by selling assets without the government’ s approval

. For her part, in January of 2017, Ms. Singleton objected to the use of U

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. § 2B1.1( a ) as the applicable guideline (rather than § 2T1.1), the loss amount, the enhancement for more than ten victims, the enhancement for sophisticated means, the enhancement for use of five or more means of identification, the enhancement for obstruction of justice, an d the failure to award a third point for acceptance of responsibility.

Case: 17-10745 Date Filed: 03/21/2018 Page: 3 of 64 Si ngleton and the government agreed that the district court’s Sentencing Guidelines calculation w as correct. Pursuant to the joint stipulation, the government recommended a 150

- month sentence. The district court sentenc ed Ms. Singleton to 150 months’ imprisonment, a three

- year term of supervised release, restitution in the amount of $5,100,129.41, and a $100 special assessment. Neither Ms. Singleton nor the government objected to the sentence

. II Where, as here, a defendant does not move to withdraw her plea in the district court or otherwise preserve a Rule 11 objection , we review for plain error . See United States v. Brown , 586 F. 3 d 1342 , 1 345 (11th Cir. 2009 )

. To establish plain error, the defendant must show a clear error that prejudiced her by affecting her substantial rights. Id

. Prejudice in this context means “a reasonable probability that, but for the error, [she] would not have entered the plea.” Unite d States v. Dominguez Benitez , 542 U.S. 74 , 83 (2004). Even if the defendant carries her burden of establishing clear, prejudicial error, “we may n ot remedy that error
unless it seriously affects the fairness, integrity or public repu tation of judicial
pr oceedings. ” Brown , 586 F. 3 d at 1 345 (internal citations removed)

. III Ms. Singleton does not dispute that her guilty plea was knowing and voluntary when she tendered it on August 2, 2016

. N or does she claim that the

Case: 17-10745 Date Filed: 03/21/2018 Page: 4 of 65 district court failed to comply with Rule 11. Instead, Ms. Singleton argues that by entering into the joint stipulation and agreeing to withdraw and waive her initial sentencing objections, she altered a term of the plea agreement which had reserved her right to “ make recommendations ” regarding the application of the Sentencing Guidelines

. In her view, the joint stipulation modified the plea agreement , and the
district court was therefore required to conduct a second Rule 11 plea colloquy before accepting the joint sti pulation at sentencing

. Despite Ms. Singleton’s assertion to the contrary, the joint stipulation did not alter or modify the plea agreement. Ms. Singleton’s plea agreement did not make any recommendations as to sentencing. In fact, it left both parties free to make recommendations as to the Sentencing Guidelines. B y entering into the joint stipulation, Ms. Singleton merely agreed to exercise her right not to assert certain

a rguments in exchange for a favorable sentencing recommendation from the government. In reality, Ms. Singleton could have opted not to assert any arguments at all. Ultimately, Ms. Singleton’s decision to exercise her rights under the plea agreement in this way ben efited her significantly during sentencing

— she received the 38

- month downward variance that she bargained for. What’s more, even assuming that the joint stipulation did somehow
constitute a modification of the plea agreement, Ms. Singleton has not argued that she would have attempted to withdraw her guilty plea and go to trial on all 35

Case: 17-10745 Date Filed: 03/21/2018 Page: 5 of 66 original counts had she received a second plea colloquy. Therefore, it is unclear how, if at all, Ms. Singleton can establish prejudice in this context

. IV The district court did not err when it accepted the parties’ joint stipulation at sentencing without conducting a second Rule 11 plea colloquy . Accordingly, we affirm Ms. Singleton ’s sentence.
AFFIRM ED. Case: 17-10745 Date Filed: 03/21/2018 Page: 6 of 6