REVISED August 29, 2013
Appeal from the United States District Court for the Southern District of Mississippi
Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge
Antonio Hughes appeals his convictions and sentence in this drug distribution conspiracy case. We AFFIRM in part and REVERSE in part the judgment of the district court.
FACTS AND PROCEEDINGS
Hughes was charged by indictment with one count of conspiracy to distribute fifty grams or more of a substance containing cocaine base (Count 1, the "conspiracy count"), in violation of 21 U.S.C. § 846, and four counts of using a telephone to facilitate the commission of a drug crime (Counts 2-5, the "telephone counts"), in violation of 21 U.S.C. § 843(b). At his initial appearance, Hughes pleaded not guilty to all counts of the indictment.
The morning that his trial was to commence, Hughes agreed to plead guilty. At his change-of-plea hearing, the Government informed the district court that it had entered into
an oral agreement [with Hughes] that if [he] were to plead guilty to the first count, being the conspiracy count, the government will ask the court to continue Counts 2 through 5 until sentencing, after which time the government intends to move to dismiss Counts 2 through 5. . . . Also, the government would recommend at sentencing that the defendant receive the lower 50 percent of the guideline range as it applies to Count 1 of the indictment.
The district court then asked Hughes whether he understood that the court was "not bound by the government's recommendation, " and Hughes replied affirmatively.
After the Government read a factual basis for the charges, the district court asked Hughes whether he conceded the truthfulness of the Government's recitation. Hughes initially refused to do so. His attorney, after consulting with Hughes, clarified for the district court that Hughes took issue with a part of the factual basis that indicated that he had distributed drugs on behalf of his supplier, when in reality he was only prepared to admit that he was selling drugs on his own behalf. Hughes affirmed to the district court that this was his complaint with the factual basis. The district court had Hughes confirm that he was admitting that he was guilty of the offenses charged in the indictment, Hughes then pleaded guilty to all five counts, and the district court accepted his guilty pleas.
Hughes subsequently moved to withdraw his guilty pleas, but the district court denied this motion after a hearing. At sentencing, the Government reminded the district court that it "did during the defendant's plea agree to dismiss Counts 2 through 5 at the conclusion of sentencing, " but the district court nevertheless handed down sentences on all five counts of the indictment. The district court sentenced Hughes to 121 months' imprisonment on the conspiracy count and 48 months' imprisonment on each of the four telephone counts, all to run concurrently, five years of supervised release, a fine, and special assessments for all five counts. Hughes timely appeals.
STANDARD OF REVIEW
We review claims not raised before the district court for plain error only. United States v. Trejo, 610 F.3d 308, 318-19 (5th Cir. 2010). When there was (1) an error below, that was (2) clear and obvious, and that (3) affected the defendant's substantial rights, a "court of appeals has the discretion to correct it but no obligation to do so." Id. at 319. "[A] defendant who seeks reversal of his conviction after a guilty plea, on the ground that the district court committed plain error under [Federal Rule of Criminal Procedure 11], must show a reasonable probability that, but for the error, he would not have entered the plea." United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
We review a district court's denial of a motion to withdraw a guilty plea and a district court's denial of a motion to dismiss counts of an indictment for abuse of discretion. United States v. Washington, 480 F.3d 309, 316 (5th Cir. 2007) (motion to withdraw a guilty plea); see United States v. Davis, 285 F.3d 378, 383 n.3 (5th Cir. 2002) (motion to dismiss counts of an indictment).
Hughes raises three arguments on appeal. First, he argues that his change-of-plea hearing was procedurally deficient under Federal Rule of Criminal Procedure 11, requiring vacatur of his guilty pleas. Second, he contends that the district court abused its discretion in denying his motion to withdraw his guilty pleas. Third, he asserts that the district court abused its discretion in not dismissing the telephone counts on the Government's motion.
1. Change-of-plea hearing
Hughes argues that his change-of-plea hearing was procedurally deficient under Rule 11 in four ways: (A) the factual basis provided by the Government was insufficient; (B) the district court failed to explain fully the consequences of his guilty pleas to the telephone counts; (C) the district court misstated the mandatory minimum and statutory maximum sentences he faced; and (D) the district court failed to inform him of the mandatory special assessments that would form a part of his sentence. Because Hughes failed to object on any of these grounds before the district court, our review is for plain error only. Trejo, 610 F.3d at 318-19. Obtaining relief for Rule 11 violations on plain error review "will be difficult to get, as it should be." Dominguez Benitez, 542 U.S. at 83 n.9. "[J]ust as there are many fair trials but few perfect ones, so flaws are also to be expected in Rule 11 proceedings." Id. (alteration in original) (quoting United States v. Raineri, 42 F.3d 36, 45 (1st Cir. 1994)). For the reasons that follow, we hold that Hughes has failed to meet this stringent standard.
(A) Factual basis
Hughes contends that the factual basis recited by the Government at his change-of-plea hearing established no basis for guilt with respect to three of the telephone counts, because it did not explicitly tie any relevant offense conduct to the dates on which the indictment alleged the three offenses had occurred. He further argues that the Government provided only a questionable basis for the conspiracy count and the fourth telephone count because, when he was first asked whether the Government's factual basis as recited was true, he answered, "no." Both of these arguments are unavailing.
"In assessing factual sufficiency under the plain error standard, we may look beyond those facts admitted by the defendant during the plea colloquy and scan the entire record for facts supporting the conviction." Trejo, 610 F.3d at 313. An indictment, "if specific, " is an acceptable record document for such an inquiry. Id. at 317. Hughes's indictment sets out the dates and locations of Hughes's use of a telephone in connection with his drug trafficking activity. This indictment, taken together with the factual basis at the change-of-plea ...