# United States v. Kenneth Brown > Court of Appeals for the Fifth Circuit · October 27, 2014 · 583 F. App'x 373 URL: https://www.frixlaw.com/law-library/cases/2745902 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Cedric BROWN, Defendant-Appellant - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** October 27, 2014 - **Citations:** 583 F. App'x 373 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Smith, Owen, Graves - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2745902 ## Opinion text Case: 14-60053 Document: 00512816131 Page: 1 Date Filed: 10/27/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 14-60053 Summary Calendar United States Court of Appeals Fifth Circuit FILED October 27, 2014 UNITED STATES OF AMERICA, Lyle W. Cayce Clerk Plaintiff–Appellee, v. KENNETH CEDRIC BROWN, Defendant–Appellant. Appeal from the United States District Court for the Northern District of Mississippi USDC No. 4:13-CR-57 Before SMITH, OWEN, and GRAVES, Circuit Judges. PER CURIAM: * Kenneth Cedric Brown appeals his guilty plea conviction for sexually exploiting a minor by production of sexually explicit material. He argues that the district court plainly erred in failing to advise him of his right to plead not guilty and to persist in a not-guilty plea, in violation of Federal Rule of Criminal Procedure 11(b)(1)(B). * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 14-60053 Document: 00512816131 Page: 2 Date Filed: 10/27/2014 No. 14-60053 As Brown concedes, he did not raise this issue in the district court and, therefore, review is limited to plain error. 1 To show plain error, Brown must show a forfeited error that is clear or obvious and that affects his substantial rights. 2 If he makes such a showing, this court has the discretion to correct the error, but should do so only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. 3 To demonstrate an effect on his substantial rights based on the district court’s failure to comply with Rule 11, Brown “must show a reasonable probability that, but for the error, he would not have entered the plea.” 4 At rearraignment, the district court did not advise Brown that he had the right to plead not guilty or to persist in a not-guilty plea. 5 However, such admonishment was implicit in the court’s inquiry whether Brown understood the consequences of choosing to plead guilty, whether he wished to waive his constitutional rights and enter a guilty plea, and whether, after being advised of the factual basis, he wished to plead guilty or not guilty. 6 Nothing in the record indicates that the district court’s omission was a factor that affected Brown’s decision to plead guilty. On appeal, Brown does not argue that he would not have pleaded guilty if the district court had advised him that he had the right to plead not guilty and to persist in a not-guilty plea. Because Brown has not shown that the district court’s failure to advise him of his right to plead 1 See Puckett v. United States, 556 U.S. 129, 135 (2009). 2 See id. 3 See id. 4 United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). 5 See FED. R. CRIM. P. 11(b)(1)(B). 6 See United States v. Bachynsky, 949 F.2d 722, 726 (5th Cir. 1991) (holding that district court’s failure to advise defendant of right to plead not guilty and right against self- incrimination were implicit in the court’s discussion of the rights he would lose if he pleaded guilty). 2 Case: 14-60053 Document: 00512816131 Page: 3 Date Filed: 10/27/2014 No. 14-60053 not guilty affected his decision to plead guilty, Brown has not shown that the omission affected his substantial rights. 7 Brown’s reliance on United States v. Neal, 509 F. App’x 302 (5th Cir. 2013), cert. denied, 134 S. Ct. 183 (2013), is misplaced as it is distinguishable. 8 Therefore, Brown has not shown plain error. 9 AFFIRMED. 7 See Dominguez Benitez, 542 U.S. at 83. 8See United States v. Neal, 509 F. App’x 302, 307-10 (5th Cir. 2013), cert. denied, 134 S. Ct. 183 (2013) (concluding that there was plain error in case in which defendant had mental and physical health issues that were evident at the rearraignment, and when asked by defendant, district court erroneously advised him that he could not plead guilty to some charges and not guilty to other charges). 9 See Dominguez Benitez, 542 U.S. at 83. 3 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2745902. Public record. Not legal advice.