United States v. Jeffrey Brian Mobley

711 F. App'x 547
CourtCourt of Appeals for the Eleventh Circuit
DecidedOctober 10, 2017
Docket16-12969 Non-Argument Calendar
StatusUnpublished

This text of 711 F. App'x 547 (United States v. Jeffrey Brian Mobley) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jeffrey Brian Mobley, 711 F. App'x 547 (11th Cir. 2017).

Opinion

PER CURIAM:

Jeffrey Brian Mobley appeals his sentence of 45 years (540 months) of imprisonment, imposed after he pled guilty to four counts of producing visual depictions of sexual exploitation of minors, in violation of 18 U.S.C. § 2251(a), (e), and two counts of distributing visual depictions of sexual exploitation of minors, in violation of 18 U.S.C. § 2252(a)(2), (b)(1). Mobley presents three arguments on appeal. First, he contends — for the first time on appeal— that his guilty plea was not knowing and voluntary because the district court failed to inform him of the mandatory minimum sentences for his offenses. Second, he argues that the district court erred by applying an upward adjustment to his offense level, pursuant to U.S.S.G § 2G2.1(b)(5), because, in his view, the minor victim was not in his custody, care, or supervisory control. Finally, Mobley maintains that his sentence is substantively unreasonable. After careful review, we affirm.

I.

Mobley first contends that the district court plainly erred during his plea colloquy by failing to inform him of the mandatory minimum penalties for his offenses, specifically the fifteen-year mandatory minimum for his § 2251 offenses.

We review for plain error when a defendant fails to object to a Rule 11 violation. United States v. DiFalco, 837 F.3d 1207, 1220 (11th Cir. 2016); United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005). “We may correct a plain error only when (1) an error has occurred, (2) the error was plain, and (3) the error affected substantial rights.” DiFalco, 837 F.3d at 1220-21. To show an effect on substantial rights based on a Rule 11 violation, the defendant must show “a reasonable probability that he would not have entered the plea but for the error.” Id. at 1224.

Under Rule 11, Fed. R. Crim. P., “a judge accepting a guilty plea from a defendant is required to inform the defendant of, and determine that the defendant understands, the rights he is surrendering and the consequences of his plea as well as determining that the plea is voluntary.” Id.; Fed. R. Crim. P. 11(b). That means that the judge, at bottom, must ensure that the defendant understands the three “core concerns” embodied in Rule 11: “that (1) the guilty plea is free from coercion; (2) the defendant understands the nature of the charges; and (3) the defendant understands the consequences of his plea.” DiFalco, 837 F.3d at 1224; United States v. Jones, 143 F.3d 1417, 1418-19 (11th Cir. 1998). To ensure that the defendant understands the consequences of his plea, the judge must tell the defendant of, among other things, the maximum penalty and any mandatory minimum penalty for his offense. Fed. R. Crim. P. 11(b)(1)(H), (I).

Initially, we note that Mobley may have waived his challenge to whether his plea was knowing and voluntary by failing to timely object to the magistrate judge’s report recommending that the district court accept his guilty plea. Rule 59 of the Federal Rules of Criminal Procedure provides that the failure to object to a magistrate judge’s finding and recommendations “waives a party’s right to review.” Fed. R. Crim. P. 59(b)(1).

Here, after conducting his plea colloquy, the magistrate judge issued a report finding that Mobley had “acknowledged that he understood any possible minimum and maximum penalties which could be imposed in this case.” Mobley did not object to that finding despite being informed of the opportunity to object and the consequences for not objecting. By failing to file any objections, he likely waived his current argument that he did not understand the minimum penalties. See id.

Even if the issue is not waived, however, Mobley has not shown that the magistrate judge commitfed any error in conducting the Rule 11 colloquy. Mobley claims that he did not understand the consequences of his plea because the magistrate judge did not inform him of the fifteen-year mandatory minimum penalty for the § 2251 offenses. But while the magistrate judge did not personally state the mandatory míni-mums, the government informed Mobley of the mandatory mínimums for each of the counts at issue.' And the magistrate judge then asked if Mobley understood the possible penalties he was facing “as to each- count in the indictment as just stated on the record” by the government. Mobley said that he did.

We presume that Mobley’s statements during the plea colloquy were true. See United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994) (“There is a strong presumption that the statements made during the colloquy are true.”). And nothing in the record contradicts Mobley’s statement that he understood the possible penalties he was facing, including the mandatory míni-mums stated by the government. For instance, Mobley did not ask about the possible penalties during the plea colloquy or otherwise show surprise or confusion when the government advised of the mandatory mínimums. Because during the plea colloquy Mobley was informed of, and said that he understood, the mandatory minimum penalties for his offenses, the district court did not err in accepting his guilty plea. See DiFalco, 837 F.3d at 1224.

II.

Mobley next contends that the district court erred in finding that the minor victim was in his custody, care, or supervisory control for purposes of the U.S.S.G. § 2G2.1(b)(5) enhancement. We review the district court’s application of the Sentencing Guidelines de novo and its factual findings for clear error. United States v. De-marest, 570 F.3d 1232, 1239 (11th Cir. 2009).

Section 2G2.1(b)(5) provides for a two-level guideline enhancement “[i]f the defendant was a parent, relative, or legal guardian of the minor involved in the offense, or if the minor was otherwise in the custody, care, or supervisory control of the defendant.” U.S.S.G. § 2G2.1(b)(5). According to § 2G2.1’s commentary, this enhancement “is intended to have broad application and includes offenses involving a minor entrusted to the defendant, whether temporarily or permanently,” such as “teachers, day care providers, baby-sitters, or other temporary caretakers.” Id. § 2G2.1 cmt. n.3(A). The commentary further advises that courts should look to the “actual relationship that existed between the defendant and the minor” and not simply its legal status. Id.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Jones
143 F.3d 1417 (Eleventh Circuit, 1998)
United States v. Jason M. Moriarty
429 F.3d 1012 (Eleventh Circuit, 2005)
United States v. Pugh
515 F.3d 1179 (Eleventh Circuit, 2008)
United States v. Demarest
570 F.3d 1232 (Eleventh Circuit, 2009)
United States v. Brooks
610 F.3d 1186 (Ninth Circuit, 2010)
United States v. Snipes
611 F.3d 855 (Eleventh Circuit, 2010)
United States v. Sarras
575 F.3d 1191 (Eleventh Circuit, 2009)
United States v. Jesus Rosales-Bruno
789 F.3d 1249 (Eleventh Circuit, 2015)
United States v. Charles Johnson, III
803 F.3d 610 (Eleventh Circuit, 2015)
United States v. Michael Francis DiFalco
837 F.3d 1207 (Eleventh Circuit, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
711 F. App'x 547, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jeffrey-brian-mobley-ca11-2017.