United States v. Eric Lee Brown

U
         USCA11 Case: 19-14607        Date Filed: 05/17/2021   Page: 1 of 15



                                                                [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 19-14607
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 1:19-cr-00002-WLS-TQL-1



UNITED STATES OF AMERICA,
                                                                   Plaintiff-Appellee,

                                       versus

ERIC LEE BROWN,
                                                                Defendant-Appellant.

                           ________________________

                    Appeal from the United States District Court
                        for the Middle District of Georgia
                          ________________________

                                   (May 17, 2021)

Before MARTIN, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM:

      Eric Lee Brown appeals his conviction by guilty plea for knowingly and

willfully operating and attempting to operate an aircraft eligible for registration by
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the Federal Aviation Administration (“FAA”), while knowing that the aircraft was

not registered, in relation to facilitating the felony of possessing marijuana with the

intent to distribute, in violation of 49 U.S.C. § 46306(b)(6)(A) and (c)(2). He

argues that, at his plea hearing, the district court plainly erred by failing to ensure

that he understood the nature of the charge against him, which rendered his guilty

plea constitutionally involuntary. After careful review, we affirm the district

court’s acceptance of Brown’s guilty plea.1

                                               I.

       On March 29, 2018, at around 10:30 p.m., law enforcement officers

responded to a call about a vehicle on a dirt road near a state prison in

Georgia. Officers stopped the vehicle and asked Brown to step out. In the

passenger area of the backseat, officers could see two clear plastic bags

containing what was later confirmed to be marijuana. They also saw a

drone. Further search of the vehicle revealed a roll of plastic vacuum wrap,

several clear plastic bags, rolling papers for cigars or cigarettes, five cell



       1
          As a preliminary matter, we reject the government’s invitation to hold that we are
precluded from reviewing any of Brown’s claims because he invited any error in the district
court’s acceptance of his plea by his statements at the plea hearing and by ultimately entering the
plea. Brown’s agreements and concessions during the plea hearing did not constitute an
affirmative or strategic decision that invited the district court to accept his plea or to explain the
relevant law in the manner he alleges was error. See United States v. Jernigan, 

341 F.3d 1273

,
1290 (11th Cir. 2003) (explaining, in applying invited-error doctrine, that “a criminal defendant
may not make an affirmative, apparently strategic decision at trial and then complain on appeal
that the result of that decision constitutes reversible error”).

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phones, and an iPad. A pat-down of Brown’s person revealed a large roll of tape

commonly used to bind contraband packages.

      The drone’s programming revealed that it was first activated on

March 23, 2018, and that it was registered to work with the iPad in Brown’s

possession. The drone and iPad both contained videos of Brown practicing

drone flights. Officers also obtained surveillance video from a Best Buy

store, which showed Brown purchasing the drone about a week before the

traffic stop. Search of the cell phones revealed text messages between Brown and

a person identified in the phone as “Brah$$$,” which discussed a plan for Brown to

get a drone, package marijuana, and fly the drone with the marijuana as cargo in

exchange for $3,000. Brown also sent Brah$$$ a message with a screenshot of the

drone he was considering purchasing, which showed that he was shopping at Best

Buy’s online store.

      A grand jury charged Brown with a drug offense and two offenses related to

his ownership and operation of a drone. Brown ultimately agreed to plead guilty to

Count Three, regarding his ownership and operation of the drone, in exchange for

the government dropping the other two charges. Specifically, Count Three charged

Brown with “knowingly and willfully operat[ing] and attempt[ing] to operate an

aircraft eligible for registration” by the FAA, “knowing that the aircraft was not

registered and said operation related to the facilitating of a controlled substance


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offense punishable by more than one year imprisonment,” in this case,

possession with intent to distribute marijuana, in violation of 49 U.S.C.

§ 46306(b)(6) and (c)(2).

      The plea agreement set forth the relevant facts described above. It

also described evidence showing Brown would have seen several

instructions to check the FAA website for requirements to register the drone.

Despite this, Brown did not register the drone found in his possession and

did not have a valid aircraft operating license.

      Brown stipulated to these facts and therefore admitted: (1) he owned

an unregistered drone; (2) the drone was an aircraft eligible for registration

under Title 49; (3) he knowingly and willfully operated, and attempted to

operate the drone, when the drone was not registered and when he did not

have an airman’s license; and (4) he operated the drone with the intent to

deliver marijuana into a Georgia state prison. He signed the plea agreement,

which certified that he read it, discussed it with his counsel, fully understood

it, and agreed to its terms. Brown also initialed each page of the plea

agreement, which included its factual proffer.

      At the plea hearing, the government summarized the terms of Brown’s

agreement to plead guilty to Count Three. The government noted the

offense was punishable by a maximum of 5 years’ imprisonment and/or a


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fine of up to $250,000, a maximum supervised-release term of 3 years, and a $100

mandatory assessment fee.

       Brown was sworn in and testified that he received a copy of the indictment,

that his counsel reviewed it with him and explained it to him, and that he was fully

satisfied with his counsel’s representation up to that point. The district court

verified that Brown had a copy of the plea agreement in front of him, and when it

asked him if he had the opportunity to review and discuss it fully with his counsel,

Brown responded, “[t]horoughly.” The district court then reviewed the indictment

with Brown and read Count Three aloud. Brown expressed confusion at his five-

year maximum sentence imposed under the penalty provision in 49 U.S.C.

§ 46306(c)(2), in light of Count Three’s requirement that the offense he facilitated

be punishable by a minimum of one year’s imprisonment. However, Brown said

he understood after clarification from the court. The court told Brown to ask a

question any time “it’s something you are not clear on,” so that the court could

explain it.

       The court then told Brown that it would describe the elements the

government would have to prove beyond a reasonable doubt before Brown could

be found guilty of Count Three. Brown said he understood each of these elements

and said he did not have any questions about what the government would have to

prove. After the district court addressed the consequences of Brown’s guilty plea,


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the government recounted the evidence it was prepared to present at trial,

which was substantially the same as the plea agreement’s factual basis.

Brown acknowledged that the government’s description was a fair statement

of the facts. However, when the court asked Brown if there was anything he

wished “to correct or add,” this sparked a lengthy colloquy about Brown’s

intent.

          Brown said: “I didn’t intend to do it, and I was just kind of just out

there trying to just get the money out of the prison. . . . I mean, I just had to

act and go along as if I was going to actually do it. . . . I was actually

leaving.” The district court found that because Brown acquired the

marijuana—and even if he did not intend to fly it into the prison—that

qualified as a “substantial step” to completing the offense. The court said

that was legally sufficient to prove intent, and Brown said he understood.

Brown confirmed his understanding.

          Based on these facts, the district court found there was a sufficient

basis to support Brown’s guilty plea. Brown confirmed he was pleading

guilty because he believed he was guilty. The court accepted Brown’s plea

and sentenced him to 48 months’ imprisonment and 3 years’ supervised

release. Brown timely appealed the judgment.




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                                         II.

        A guilty plea involves relinquishment of several constitutional rights and

privileges. United States v. Presendieu, 

880 F.3d 1228

, 1238 (11th Cir. 2018). It

must therefore be entered voluntarily and knowingly.

Id. We ordinarily review

de

novo the voluntariness of a guilty plea. United States v. Bushert, 

997 F.2d 1343

,

1352 (11th Cir. 1993). However, when a defendant neither objects to plea

proceedings nor moves to withdraw the plea in the district court, we review for

plain error only. United States v. Monroe, 

353 F.3d 1346

, 1349 & n.2 (11th Cir.

2003). We may reverse an error that was plain and that affects the defendant’s

substantial rights, provided it also seriously affects the fairness, integrity, or public

reputation of judicial proceedings. United States v. Innocent, 

977 F.3d 1077

, 1081

(11th Cir. 2020). An error is plain if it is clear or obvious. 

Monroe, 353 F.3d at

1352

.

        We ordinarily review de novo questions of constitutional law. United States

v. Brown, 

364 F.3d 1266

, 1268 (11th Cir. 2004). However, we review

constitutional challenges not raised before the district court for plain error only.

United States v. Moriarty, 

429 F.3d 1012

, 1018 (11th Cir. 2005) (per curiam).

                                         III.

        Brown makes three arguments on appeal. First, he says that the district court

violated Federal Rule of Criminal Procedure 11(b)(1)(G) by misstating the law of


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attempt and failing to explain that Brown must have had actual knowledge that the

aircraft was eligible for FAA registration. Second, he argues the factual basis for

his guilty plea was insufficient under Rule 11(b)(3). Finally, he claims that

because he did not know the mens rea applicable to attempt when he was pleading

guilty, his guilty plea is involuntary, in violation of his constitutional rights.

A.     KNOWING AND VOLUNTARY PLEA
       Before a court accepts a guilty plea, it must find that the defendant

understands the nature of the charge to which he is pleading. Fed. R. Crim. P.

11(b)(1)(G). This inquiry turns on a variety of factors, “including the complexity

of the offense and the defendant’s intelligence and education.” United States v.

Telemaque, 

244 F.3d 1247

, 1249 (11th Cir. 2001) (per curiam).

       The charge to which Brown pled guilty required him to admit he “knowingly

and willfully operate[d] or attempt[ed] to operate an aircraft eligible for

registration” under 49 U.S.C. § 44102, “knowing that” (1) the aircraft is not

registered under 49 U.S.C. § 44103; or (2) the certificate of registration is

suspended or revoked; or (3) he did not “have proper authorization to operate or

navigate the aircraft without registration for a period of time after transfer of

ownership.”2 49 U.S.C. § 46306(b)(6). Brown was convicted for attempt under



       2
        That Brown possessed marijuana, a controlled substance, impacted the penalty he faced.
See 49 U.S.C. § 46306(c)(2).

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the statute because there was no proof he actually operated the drone to deliver

marijuana. To sustain a conviction for attempt, the government must prove that the

defendant: (1) had the specific intent to engage in the criminal conduct for which

he is charged; and (2) took a substantial step toward commission of the offense.

United States v. Murrell, 

368 F.3d 1283

, 1286 (11th Cir. 2004).

      Brown argues the district court plainly erred by misstating the law when it

told him he would be guilty of attempt because he took a substantial step towards

completing the offense. He says this misstatement led him to plead guilty “under

the mistaken impression that it didn’t matter whether he intended to complete the

offense,” because if he did not intend to follow through with the plan to use the

drone to deliver drugs to the prison, he acted neither knowingly nor willfully.

      Brown’s argument fails. He reads the penalty provision in 49 U.S.C.

§ 46306(c)(2) as requiring proof that he intended to complete the controlled

substance offense. But the plain language of the statute under which Brown was

charged criminalizes only the knowing and willful attempt to operate an aircraft

knowing that the aircraft was not authorized under the FAA. See 49 U.S.C.

§ 46306(b)(6). Section 46306(b)(6) does not impute any mens rea for facilitating a

controlled substance violation. And here the district court explained what the

government would have to prove at trial to convict Brown under § 46306(b)(6).

Brown confirmed that he understood the explanation and had no questions about


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the government’s burden of proof. Contra 

Telemaque, 244 F.3d at 1249

(holding

that the district court plainly erred when, among other things, it did not refer to the

elements of the offense). Therefore, the district court did not plainly err in

explaining the conduct necessary to prove an attempt to violate this statute. See

Monroe, 353 F.3d at 1356

(describing Telemaque as a case in which there was “a

total failure” to explain the charge).

B.    FACTUAL BASIS FOR THE PLEA
      Next, Brown argues that the District Court plainly erred when it did not

explain that Brown must have had actual knowledge that the aircraft was eligible

for registration. Relatedly, Brown says the government’s factual proffer was not

sufficient to establish actual knowledge in violation of Federal Rule of Criminal

Procedure 11(b)(3).

      First, Brown argues that the term “knowingly” applies to all elements of the

crime and the district court failed to explain that, in order to plead guilty under

§ 46306(b)(6), Brown “had to know that his drone was eligible for registration”

under the FAA. See Rehaif v. United States, 588 U.S. ___, 

139 S. Ct. 2191

, 2196

(2019). Brown would thus read § 46306(b)(6) as prohibiting “knowingly and

willfully operat[ing] or attempt[ing] to operate an aircraft [knowing it was]

eligible” for FAA registration.




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       Brown’s argument has some merit. Similar to the way in which the

Supreme Court read 18 U.S.C. § 922(g), § 46306(b)(6) “simply lists the elements

that make a defendant’s behavior criminal.” 

Rehaif, 139 S. Ct. at 2196

. When

reading a relatively short statute such as § 46306(b)(6), we “read the statutory term

‘knowingly’ as applying to all the subsequently listed elements of the crime.”

Id.

(quotation marks omitted);

see

id. (“This is notably

not a case where the modifier

‘knowingly’ introduces a long statutory phrase, such that questions may reasonably

arise about how far into the statute the modifier extends.”). But we must not forget

that we are required to review Brown’s claim for plain error. And, because Rehaif

interpreted § 922(g), not § 46306(b)(6), and no other court has applied the analysis

in Rehaif to § 46306(b)(6), we cannot hold the district court plainly erred in its

explanation of the elements of Brown’s charge. See 

Moriarty, 429 F.3d at 1019

(“When neither the Supreme Court nor this Court has resolved an issue, and other

circuits are split on it, there can be no plain error in regard to that issue.”);

Innocent, 977 F.3d at 1085

(holding there was no plain error when “[n]o precedent

from the Supreme Court or this Court, or explicit language of a statute or rule,

directly resolved the issue in [the defendant’s] favor” (quotation marks omitted and

alteration adopted)).

       Brown next argues, based on the same “knowledge of eligibility” theory,

that the factual proffer for his guilty plea was insufficient under Rule 11(b)(3). He


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says the government admitted there was no evidence he visited the FAA’s website,

such that there is no evidence he knew the drone was an aircraft eligible for

registration.

      Before entering judgment on a guilty plea, a district court must determine

that there is a factual basis for the plea. Fed. R. Crim. P. 11(b)(3). The court must

determine whether the conduct to which the defendant admits constitutes the

offense to which the defendant has pled guilty. United States v. Lopez, 

907 F.2d

1096

, 1100 (11th Cir. 1990). The standard is whether the court was presented with

evidence from which it could reasonably find that the defendant was guilty.

Id.

Here the district

court’s decision to accept Brown’s plea was not so

insufficient as to constitute plain error. As described above, the district court did

not plainly err by not attributing the “knowingly” element of § 46306(b)(6) to its

eligibility element. As such, the court did not plainly err by failing to tell Brown

he needed to know that the aircraft was eligible for registration to ensure Brown

understood he violated § 46306(b)(6). The factual proffer—which showed that

Brown knowingly attempted to operate an unlicensed drone, an aircraft eligible for

FAA registration—combined with Brown’s admission of these facts, was sufficient

to establish a factual basis for the plea. The district court did not plainly err by

accepting the government’s factual proffer.




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C.     DUE PROCESS

       Finally, Brown argues that his due process rights were violated when he pled

guilty without knowing the mens rea applicable to attempt and without knowing

the requirement that he knowingly failed to register the drone. Brown says the

failure to notify him of a critical element of his crime is a structural error that

renders his guilty plea constitutionally involuntary.

       Brown relies on Boykin v. Alabama, 

395 U.S. 238

, 

89 S. Ct. 1709

(1969),

and Henderson v. Morgan, 

426 U.S. 637

, 

96 S. Ct. 2253

(1976), to show the

district court’s error satisfies the plain-error standard and that the error is structural.

In Boykin, the Supreme Court held that a trial judge plainly erred by accepting a

guilty plea without an affirmative showing that it was intelligent and voluntary,

and that it could not presume from a silent record that a defendant waived his trial

rights. 395 U.S. at 239

–40, 

242–43, 89 S. Ct. at 1710

–12. In Henderson, the Court

held the defendant’s guilty plea to second-degree murder was involuntary where

the record did not reflect any discussion of the elements or nature of the offense or

any reference at all to the required element of 

intent. 426 U.S. at 642

–45, 96 S. Ct.

at 2256–58.

       Brown’s reliance on these cases, however, is misplaced. As discussed

above, Brown admitted to actually operating, and thus intending to operate, the

drone by engaging in practice flights before he went to the prison. And, on plain


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error review, he cannot show he was required to know that his drone was eligible

for registration to plead guilty to 49 U.S.C. § 46306(b)(6)(A) and (c)(2). See 49

U.S.C. § 46306(b)(6)(A), (c)(2). This being the case, the district court did not omit

any elements of the offense at the plea hearing. Brown’s case is thus distinct from

Boykin, where the trial court failed to ensure that the guilty plea was voluntary and

knowing at all, and distinct from Henderson, where the plea was not voluntary

because the defendant was not informed of any of the elements of his offense. See

Boykin, 395 U.S. at 242

–43, 89 S. Ct. at 1711–12; 

Henderson, 426 U.S. at 642

–46,

96 S. Ct. at 2256–58. Brown’s constitutional error claim fails because the district

court did not err, plainly or otherwise, by failing to inform him of any elements of

his offense.

      Further, even if the district court erred, any error was not structural.

Moriarty, 429 F.3d at 1018

(applying plain error review to claim not raised before

the district court). Under plain-error review, a defendant must also show the error

affected his substantial rights, which is where the question of whether “the failure

to submit an element of the offense to the jury is ‘structural error’ becomes

relevant.” Johnson v. United States, 

520 U.S. 461

, 468, 

117 S. Ct. 1544

, 1549

(1997). Structural errors have only been found in “a very limited class of cases”

involving “a defect affecting the framework within which the trial proceeds, rather

than simply an error in the trial process itself.”

Id. (quotation marks omitted).

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Neither this Court nor the Supreme Court have found that element-related errors

fall within this limited class of cases. See

id. at 468–69, 117

S. Ct. at 1549–50

(collecting cases); see also United States v. Reed, 

941 F.3d 1018

, 1020, 1022 (11th

Cir. 2019) (holding that defendant could not show a Rehaif error affected his

substantial rights because the record established that defendant knew he was a

felon).

      AFFIRMED.




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