FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEB 26, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-11178

Non-Argument Calendar

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D. C. Docket No. 08-00197-CR-1-VEH-TMP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROOSEVELT ADAMSON, JR.,

a.k.a. Pokey,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Alabama

_________________________

Before BLACK, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
Roosevelt Adamson, Jr. appeals from his conviction and 262-month

sentence for his role in a drug conspiracy and other offenses. We affirm.

I. Background

In September 2008, Adamson pleaded guilty to conspiracy to distribute and

to possess with the intent to distribute 50 grams or more of a cocaine-based

substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and the

unlawful use of a communication facility to commit and facilitate a felony, in

violation of 21 U.S.C. § 843(b).

The plea agreement contained a cooperation provision stating that, if

Adamson provided “substantial assistance” under U.S.S.G. § 5K1.1, the

government would seek a downward departure in Adamson’s sentence. The

parties agreed that the decision “as to the degree or extent of the downward

departure requested, if any, also lies in the sole discretion of the United States.”

Finally, the agreement informed Adamson that the Sentencing Guidelines were

advisory and that the plea agreement was not binding on the district court.

Before sentencing, the government filed two “Informations,” under 21

U.S.C. § 851, detailing two of Adamson’s prior felony drug convictions for drug

possession and aiding and abetting drug distribution. Soon after, the district court

held a change-of-plea hearing. At this hearing, Adamson stated that he understood

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that his prior drug convictions would result in a longer sentence for his drugconspiracy offense. Adamson also indicated that he understood the appeal-waiver

provision, the government’s discretion in recommending a reduced sentence, and

the fact that the court was not bound by either the Guidelines or the plea

agreement. Finally, Adamson stated that he understood his right to plead not guilty

and proceed to trial, his forfeiture of that right and other trial rights, and the nature

of the charges and the content of the plea agreement. Adamson then stipulated to

the facts set forth in the plea agreement and entered his guilty plea. The court

accepted his plea and found that it was entered freely, voluntarily, and knowingly.

Because his drug-conspiracy offense was his third felony drug arrest, the

presentence investigation report classified Adamson as a “career offender” under

U.S.S.G. § 4B1.1, subjecting him to a guideline sentence of life in prison.

Thereafter, the government filed a motion to depart pursuant to U.S.S.G. §

5K1.1 and 18 U.S.C. § 3553(e). The government stated that Adamson was

“forthcoming and cooperative” and recommended a 300-month sentence. The

government later argued that it did not mention Adamson’s help in two homicide

cases in this motion because the information that Adamson provided had yet to be

corroborated.

At the sentencing hearing, Adamson addressed the court, apologized, and

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asserted that his “little small part” in the conspiracy did not merit 20 years’

imprisonment. The government responded:

[PROSECUTOR]: Your Honor, Mr. Adamson is absolutely right. His

involvement in the conspiracy is not worth 20 years. It’s worth life.

[THE COURT]: I didn’t see that one coming.

[PROSECUTOR]: Well, Your Honor, it’s true. I mean --

[THE COURT]: No, no. Just go ahead. I just reacted, and I didn’t see

it coming.

[PROSECUTOR]: I am not trying to be funny. He has got priors.

The reason why he is here today, the reason why we are sitting here,

and the reason why we are talking about this – why we talked about

[U.S.S.G §] 5K is because he is in a position to be sentenced at life . . .

. [H]e was being locked up in federal prison . . . for distributing and

obtaining kilos of cocaine, which is exactly what he is here for now.

He is here because he continues to violate the law . . . .

That’s why it’s a little bit hard to hear that he feels like somehow he

deserves to get less than the 25 years. He is getting a huge break

down from life for somebody who has repeatedly offended,

repeated[ly] distributed cocaine . . . .

So it’s a little bit hard to hear that he feels like somehow this is a onetime thing, that all of these programs he went to worked, because they

didn’t . . . . Did Mr. Adamson cooperate? Absolutely. Is he doing

everything that we asked him to do? Absolutely. Do we think that he

needs to get a break from life because of that ? Absolutely. That’s

the reason why we filed a motion . . . . So we would ask the Court to

honor our motion and sentence the defendant as requested by the

government to 300 months.

The court granted the government’s motion for a downward departure,

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which yielded an advisory guideline range of 262 to 327 months’ imprisonment,

and sentenced Adamson to 262 months. Neither party objected. Adamson

appeals, arguing that his guilty plea was not entered knowingly or voluntarily and,

alternatively, that the government breached its obligations under the terms of his

plea agreement.

II. Discussion

Because Adamson raises both of his arguments for the first time on appeal,

we review for plain error. Puckett v. United, 129 S. Ct. 1423, 1428 (2009)

(resolving a circuit split and holding that the government’s breach of a plea

agreement, when not properly preserved before the trial court, is an issue subject to

plain-error review); United States v. Spoerke, 568 F.3d 1236, 1244-45 (11th Cir.

2009) (holding that most issues raised for the first time on appeal are reviewed for

plain error). Plain error occurs where: “(1) there is an error; (2) that is plain or

obvious; (3) affecting the defendant’s substantial rights in that it was prejudicial

and not harmless; and (4) that seriously affects the fairness, integrity or public

reputation of the judicial proceedings.” Spoerke, 568 F.3d at 1244-45.

1. Knowing and Voluntary Plea

Adamson first argues that the district court erred in accepting Adamson’s

plea as knowing and voluntary. Federal Rule of Criminal Procedure 11 requires a

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district court to conduct an inquiry into whether a defendant’s guilty plea is

knowing and voluntary. United States v. Hernandez-Fraire, 208 F.3d 945, 949

(11th Cir. 2000). Before it accepts a guilty plea, the court must address three core

concerns underlying Rule 11: “(1) the guilty plea must be free from coercion; (2)

the defendant must understand the nature of the charges; and (3) the defendant

must know and understand the consequences of his guilty plea.” (Id.) (quotation

marks omitted).

We conclude that the district court did not plainly err in finding that

Adamson’s plea was knowing and voluntary. At the change-of-plea hearing,

Adamson stated that he had not been coerced, that he understood the nature of the

charges against him, and that he understood what rights he was giving up and the

potential penalties he faced. Accordingly, the court did not plainly err in accepting

his plea as knowing and voluntary.

2. Breach of plea agreement

Adamson next argues that the government breached the plea agreement. The

government is bound by any material promises it makes to a defendant as part of a

plea agreement that induces the defendant to plead guilty. United States v.

Horsfall, 552 F.3d 1275, 1281 (11th Cir. 2008). Whether the government violated

an agreement is judged according to the defendant’s reasonable understanding at

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the time he entered his plea. Id. Because he raises this issue for the first time on

appeal, Adamson must establish that the government’s breach affected his

sentence. See Puckett, 129 S.Ct at 1433, n.4 (“When the rights acquired by the

defendant relate to sentencing, the outcome he must show to have been affected is

his sentence.”).

Adamson alleges that the government breached the agreement by failing to

inform the court of assistance he provided regarding two pending homicide

investigations, misstating his prior convictions by claiming that he was previously

incarcerated for “distributing and obtaining kilos of cocaine,” and stating that

Adamson’s involvement in the conspiracy was “worth life.” He alleges that these

breaches “resulted in a magnified sentence that was patently unfair.”

We conclude that Adamson has not established that these government

omissions and misrepresentations prejudiced his sentence. Adamson concedes that

both of his prior convictions were felony drug offenses. Adamson, therefore, was

subject to life imprisonment under the sentencing guidelines not because of the

quantity of drugs involved in his previous convictions or the government’s

comments but because the instant drug-conspiracy offense was his third felony

drug offense and he was a “career offender” under U.S.S.G. § 4B1.1. The

government’s § 5K1.1 motion reduced his advisory guideline range to 262-327

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months, and the district court exercised its discretion in sentencing him to the

lowest amount within this range.

Finally, Adamson contends in his reply brief that the government breached

the plea agreement because, under the agreement’s terms, it was obligated to

recommend a sentence at the low end of the guideline range, which was 262-327

months. We will not address this argument because Adamson failed to raise it in

his initial brief. United States v. Nealy, 232 F.3d 825, 830-31 (11th Cir. 2000)

(holding that parties “must submit all issues on appeal in their initial briefs” and

issues submitted for the first time in supplemental briefing are waived).

Thus, Adamson’s conviction and sentence are

AFFIRMED.

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