The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 6, 2010
No. 09-30502
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
WALTER BROWN,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:08-CR-149-2
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Walter Brown was charged in a multi-count indictment. Among the
charges was a drug trafficking conspiracy in violation of 21 U.S.C. § 846 and
possession of a firearm in furtherance of that drug trafficking offense in violation
of 18 U.S.C. § 924(c). Brown pled guilty to both offenses. He received a 120-
month sentence on the drug trafficking conviction and a consecutive 60-month
sentence on the firearm conviction. We AFFIRM.
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 09-30502
In his sole issue on appeal, Brown argues that his guilty plea on the
firearm count was not entered into knowingly. His argument is based on the
district court’s misstatement when explaining the elements of the offense. The
judge said that the Government had to prove a conspiracy to use, rather than the
actual possession of, a firearm in furtherance of the drug trafficking offense.
Brown did not object to this error in the district court, and we review it
only for plain error. See United States v. Vonn, 535 U.S. 55, 58 (2002). For error
to be plain, it must be clear and affect the appellant’s substantial rights. Puckett
v. United States, 129 S. Ct. 1423, 1429 (2009). Error affects the appellant’s
substantial rights when “the outcome of the district court proceedings” is
affected. Id. (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). The
discretion to correct the error should be exercised by the appellate court only if
the error “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. (quoting Olano, 507 U.S. at 736).
Though the district court once misstated the offense on the record, the
court had correctly stated the charge earlier in the same hearing. The district
court also correctly stated that Brown faced a statutorily mandated sentence of
between five years and life in prison. The plea agreement, the pre-sentence
report, and the indictment all listed the correct charges against Brown. Before
the district court, Brown verified that he read and understood the plea agreement
he had signed, he indicated that he read the pre-sentence report and had no
objection to it, and he waived reading of the indictment and affirmed that he had
gone over it with his attorney. Defense counsel stated that he had explained the
charges to Brown and that Brown understood the charges against him.
Brown has not shown by a reasonable probability that, but for the district
court’s error, he would not have pled guilty. See United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004).
AFFIRMED.
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