Appeal from the United States District Court for the Northen District of Indiana, South Bend Division. No. 04 CR 105-Allen Sharp, Judge.
The opinion of the court was delivered by: Kanne, Circuit Judge.
Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
Ivory Griffin pled guilty to one count of possessing an unregistered firearm, 26 U.S.C. § 5861(d), and one count of possessing a firearm after having been previously convicted of a felony, 18 U.S.C. § 922(g)(1). The district court sentenced him to a total of 146 months' imprisonment on both counts. On appeal, Griffin seeks to withdraw his guilty pleas on the basis that the court conducted an incomplete plea colloquy. See Fed. R. Crim. P. 11(b). Griffin also challenges his sentence on the grounds that the court (1) denied him his right to allocution before imposing sentence; and (2) inappropriately entered a corrected judgment. We affirm Griffin's convictions. However, we vacate his sentence and remand for resentencing.
The facts are undisputed. In the fall of 2002, Indiana State Troopers stopped Griffin for speeding on the Indiana Toll Road in St. Joseph County. After Griffin consented to a search of his Pontiac, the officers found in the car's trunk a sawed-off shotgun and ammunition. The officers placed Griffin under arrest, and a grand jury later indicted him on charges of possessing the firearm and ammunition. See 18 U.S.C. § 922(g)(1); 26 U.S.C. § 5861(d). Griffin eventually pled guilty to the charges without the benefit of a plea agreement.
At his plea hearing, the district court conducted the colloquy required under Fed. R. Crim. P. 11(b) before accepting Griffin's guilty pleas. Specifically, the court explained to Griffin that he had the right to plead not guilty; to be tried before a jury; and to have counsel, both before the district court and on appeal. See Fed. R. Crim. P. 11(b)(1)(B), (b)(1)(C), (b)(1)(D). The court also informed Griffin that, had he elected to proceed to trial, the government could not have forced him to testify, and he would have had the right to confront and cross-examine witnesses who testified against him. See Fed. R. Crim. P. 11(b)(1)(E). After the court advised Griffin that he was waiving those rights by pleading guilty, see Fed. R. Crim. P. 11(b)(1)(F), it outlined the nature and essential elements of each of the firearms charges brought against him, stated the maximum possible penalties to which he was exposed, and explained its obligation to impose a special assessment, see Fed. R. Crim. P. 11(b)(1)(G), (b)(1)(H), (b)(1)(L).
Despite conducting an otherwise thorough Rule 11 colloquy, the district court did not specifically advise Griffin that he would have had the right to present evidence or that he could have compelled the attendance of witnesses through the court's subpoena power. See Fed. R. Crim. P. 11(b)(1)(E). And although the court informed Griffin that he would "be sentenced under the appropriate [Sentencing] Guidelines," the court did not explain that it had the authority "to depart" from the applicable guidelines range. See Fed. R. Crim. P. 11(b)(1)(M).
Neither Griffin's counsel, nor the government, informed the court that it overlooked some portions of the colloquy-a point to which we will later return. More importantly, however, Griffin did not object to the colloquy as it was conducted. Instead, Griffin reaffirmed that he was pleading guilty knowingly and voluntarily, and that he was, in fact, guilty of the two firearms charges. The court then accepted Griffin's guilty pleas and scheduled a sentencing hearing.
The district court opened Griffin's sentencing hearing by calculating the guidelines imprisonment range to which he was subject-130 to 162 months. Immediately after the court determined the range, however, it stated that it had "considered the entire record in this case," and based on that review it was "the intent of [the] court" to sentence Griffin to 73 months' imprisonment on the felon-in-possession count, and another 73 months for the unregistered firearm count, for a total of 146 months' imprisonment. The court then stated, "Mr. Griffin has a right to address me directly, and I will certainly afford him that right." Griffin did not object. Instead, he said, "Well, um, there ain't too much I can say to change your mind. I just want to take this opportunity to apologize to my wife for hurting her feelings and, um, tell her I'm sorry I ain't going to be there for her. That's really it." Although the court later allowed Griffin's attorney and the government's counsel to present arguments regarding the appropriate sentence to impose, it nevertheless entered the 146-month sentence "as indicated."
On appeal, Griffin seeks to withdraw his guilty pleas on the ground that the district court conducted a deficient Rule 11 colloquy. Specifically, he points to the court's failure to advise him that he would have had the right to present evidence, that he could have compelled the attendance of witnesses through the court's subpoena power, and that the court had the authority "to depart" from its calculated guidelines range. See Fed. R. Crim. P. 11(b)(1)(E), (b)(1)(M).
Because Griffin did not challenge the sufficiency of the colloquy before the district court, our review is for plain error. See Fed. R. Crim. P. 52(b); United States v. Vonn, 535 U.S. 55, 59 (2002); United States v. Villarreal-Tamayo, 467 F.3d 630, 632 (7th Cir. 2006). Under this stringent standard of review, Griffin shoulders the burden of pointing to evidence showing that the district court's incomplete colloquy affected his "substantial rights." See Fed. R. Crim. P. 11(h) ("A variance from the requirements of this rule is harmless error if it does not affect substantial rights."); Fed. R. Crim. P. 52(b) ("A plain error that affects substantial rights may be considered even though it was not brought to the court's attention."); United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004); United States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005). In other words, Griffin must show that, but for the district court's omissions, there was a reasonable probability that he would not have pled guilty. See Dominguez Benitez, 542 U.S. at 83; Lee, 399 F.3d at 866.
Griffin, however, highlights no evidence showing that he would not have pled guilty; he merely asserts, without elaboration, that the rights the district court overlooked are "fundamental" and "affect the fairness of the proceedings." And after reviewing the record, we see nothing suggesting that Griffin would not have pled guilty, particularly when the evidence that he had a previous felony conviction and possessed an unregistered shotgun was overwhelming, see United States v. Parker, 368 F.3d 963, 969 (7th Cir. 2004); United States v. Kelly, 337 F.3d 897, 905 (7th Cir. 2003), and when he informed the court that he was pleading guilty to the firearms charges because he was, in fact, guilty, see United States v. Chavers, No. 06-4303, slip op. at 4 (7th Cir. Jan. 25, 2008) ("[T]he defendant's statements ...