USA v. John James Walker Common

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13244
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN JAMES WALKER COMMON,
a.k.a. JJ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 3:19-cr-00235-LCB-SGC-1
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2 Opinion of the Court 21-13244
____________________
Before R OSENBAUM , GRANT, and TJOFLAT, Circuit Judges.
PER CURIAM:
John Common appeals the denial of his motion to with-
draw his guilty plea. He argues that the District Court abused its
discretion by denying his motion to withdraw his guilty plea be-
cause the District Court failed to inform him of the maximum
sentences he faced at his Federal Rule of Criminal Procedure 11
hearing.1 We affirm the denial of the motion to withdraw Com-
mon’s guilty plea on the ground that he was informed by his at-
torney of the possible maximum sentences prior to pleading
guilty.
I.
Common pleaded guilty to two drug-related counts on Oc-
tober 23, 2020. The plea agreement stated that “the maximum
statutory punishment” for the first count is “[i]mprisonment for
not less than 5 years.” The agreement also stated that “the max-
imum statutory punishment” for the second count is
“[i]mprisonment for not less than 10 years.” The District Court
accepted Common’s plea agreement on the same day after engag-
1 Common also argues that the appeal waiver in his plea agreement does not
apply here. Because the government does not address this argument in its
brief and we nevertheless affirm the District Court’s order, we assume with-
out deciding that this appeal is not barred by the waiver.
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21-13244 Opinion of the Court 3
ing in a colloquy with Common and his attorney (“Attorney
Two”). The attorney that represented Common at this Change
of Plea Hearing was Common’s second attorney in this case.
On January 19, 2021, at what was supposed to be Com-
mon’s Sentencing Hearing, Attorney Two orally moved the
Court to permit Common to withdraw his guilty plea. Common,
addressing the District Court personally, pointed to disagree-
ments with the presentence report and a breakdown in the rela-
tionship between Common and Attorney Two. The District
Court did not rule on Common’s oral motion. Rather, the Dis-
trict Court appointed a new attorney (“Attorney Three”) to repre-
sent Common going forward.
Attorney Three filed a written motion to withdraw Com-
mon’s guilty plea on April 23, 2021, arguing in part that “the
Court did not advise Mr. Common of the statutory maximum
sentence available for each of th[e] charges” at Common’s Rule 11
plea hearing. The District Court held a hearing on this motion on
May 24, 2021, at which Attorney Two testified. In relevant part,
Attorney Two testified that Common’s first attorney had dis-
cussed the maximum punishment—life imprisonment—with
Common before Attorney Two had taken over the representa-
tion. Attorney Two also testified that, even though Common
“never would agree with [him] that [Common] was facing a life
sentence,” Attorney Two told Common in “just about every con-
versation” with him that he faced a potential life sentence.
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4 Opinion of the Court 21-13244
The District Court issued an order (“Order”) denying
Common’s motion to withdraw his guilty plea on July 13, 2021.
Applying Rule 11, the District Court found that its failure to in-
form Common of the maximum sentence at his Rule 11 plea
hearing was harmless because (1) Common stated at the plea col-
loquy that he understood the Guidelines sentence range and (2)
Attorney Two testified at the May 24 hearing that he had gone
over the potential maximum penalties with Common before he
pleaded guilty. Implicit in the Order is a finding that Attorney
Two’s testimony at the May 24 hearing was credible. Though At-
torney Three cross-examined Attorney Two at the May 24 hear-
ing, the District Court found Attorney Two’s testimony worthy
of belief. Common appeals the denial of this motion.
II.
Rule 11(b) of the Federal Rules of Criminal Procedure “sets
out procedures that district courts must follow when accepting
guilty pleas” to ensure that a defendant’s plea is entered voluntari-
ly and knowingly.
United States v. Presendieu, 880 F.3d 1228,
1238 (11th Cir. 2018). In other words, for a defendant to know-
ingly and voluntarily enter a plea, the plea must comply with
Rule 11.
United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir.
2005) (per curiam). One of Rule 11’s procedures is informing the
defendant of, and ensuring that he understands, the maximum
statutory term of imprisonment. Fed. R. Crim. P. 11(b)(1)(H).
However, a variance from Rule 11’s requirements is harm-
less error if it does not affect the defendant’s substantial rights.
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21-13244 Opinion of the Court 5
Fed. R. Crim. P. 11(h). The purpose of the harmless-error rule
in Rule 11(h) is to end the automatic vacation of a guilty plea
based on any Rule 11 error.
United States v. Monroe, 353 F.3d
1346, 1356 (11th Cir. 2003).
We review a District Court’s denial of a motion to with-
draw a guilty plea for abuse of discretion.
United States v. Brehm,
442 F.3d 1291, 1298 (11th Cir. 2006) (per curiam). “A district
court abuses its discretion if it fails to apply the proper legal
standard or to follow proper procedures in making the determina-
tion, or makes findings of fact that are clearly erroneous.”
United
States v. Izquierdo, 448 F.3d 1269, 1276 (11th Cir. 2006) (per curi-
am) (quotation omitted). Common does not assert that the Dis-
trict Court applied the wrong legal standard. In fact, it is clear
that the District Court properly applied the harmless error provi-
sion in Rule 11(h) in its Order. Therefore, we construe Com-
mon’s appeal as a challenge that the District Court’s implicit find-
ing that Attorney Two was truthful at the May 24 hearing was
clearly erroneous. For a factual finding to be clearly erroneous,
we must be left with a definite and firm conviction that a mistake
has been committed.
United States v. Rothenberg, 610 F.3d 621,
624 (11th Cir. 2010).
Specifically, in discussing the Rule 11 requirement that a
court inform a defendant of the nature of the charges against him,
Fed. R. Crim. P. 11(b)(1)(G), the United States Supreme Court has
stated that “the constitutional prerequisites of a valid plea may be
satisfied where the record accurately reflects that the nature of the
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6 Opinion of the Court 21-13244
charge and the elements of the crime were explained to the de-
fendant by his own, competent counsel.”
Bradshaw v. Stumpf,
545 U.S. 175, 183, 125 S. Ct. 2398, 2405 (2005). We have also pre-
viously held that where a review of the record “reveals that a de-
fendant clearly was aware of the information Rule 11 was de-
signed to address, a district court’s inadvertent failure to discuss
those issues will be deemed to be harmless.”
United States v.
Jones, 143 F.3d 1417, 1419 (11th Cir. 1998) (per curiam).
III.
The District Court did not abuse its discretion by denying
Common’s motion to withdraw his guilty plea. Although the
District Court and plea agreement did not explicitly inform him of
the statutory maximum sentences, the District Court’s finding
that his substantial rights were not affected because his attorney
had apprised him of the potential consequences several times be-
fore he pled guilty was not clearly erroneous. Accordingly, we
affirm.
AFFIRMED.
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