from the United States District Court for the Northern
District of Ohio at Cleveland. No. 1:17-cr-00515-1-Benita Y.
Pearson, District Judge.
Kimberly L. Penix, ALDERMAN LAW FIRM, Denver, Colorado, for
M. McDonough, UNITED STATES ATTORNEY'S OFFICE, Cleveland,
Ohio, for Appellee.
Before: BATCHELDER, DONALD, and READLER, Circuit Judges.
M. Williams, Jr., challenges his guilty pleas on the basis
that the district court violated Federal Rule of Criminal
Procedure 11. As set forth below, we AFFIRM.
in the morning on October 11, 2017, Williams and another man
armed with a rifle approached a Chevy Cruz in a driveway and
forced the occupants out of the vehicle. Williams fled to
another vehicle driven by a getaway driver, while his
accomplice drove off in the Chevy Cruz. Later that same
morning, Williams and a juvenile, both wearing hooded
sweatshirts and masks and the juvenile carrying an AR-15,
entered the Willoughby-Eastlake Schools Credit Union and
yelled that it was a robbery. When an armed security guard
drew his weapon, Williams and the juvenile, who dropped the
AR-15, fled the credit union. Police arrested Williams and
the juvenile after a foot chase; Melvin Hill, their driver,
was also arrested.
federal grand jury subsequently returned an indictment
charging Williams and Hill in Count 1 with attempted armed
robbery of a credit union, in violation of 18 U.S.C.
§§ 2 and 2113(a), (d), and (g), and in Count 2 with
brandishing a firearm during and in relation to that
attempted armed credit union robbery, in violation of 18
U.S.C. §§ 2 and 924(c)(1)(A)(ii). The indictment
also charged Williams in Count 3 with carjacking, in
violation of 18 U.S.C. § 2119(1), and in Count 4 with
brandishing a firearm during and in relation to that
carjacking, in violation of 18 U.S.C. §
924(c)(1)(A)(ii). Pursuant to a written plea agreement,
Williams pleaded guilty to all four counts. The district
court sentenced Williams to a total of 205 months of
imprisonment, followed by five years of supervised release.
timely appeal, Williams argues that the district court
accepted his guilty plea to Count 1, attempted armed credit
union robbery, in violation of Rule 11 because the plea
colloquy (1) failed to advise him as to the accomplice
element of the crime and (2) failed to provide a factual
basis for the dangerous weapon element of the crime. Williams
asks this court to vacate his guilty plea as to Count 1;
vacate his guilty plea as to Count 2, brandishing a firearm
during and in relation to a crime of violence, because Count
1 is the predicate offense for that count; and remand to the
district court to allow him to plead anew or for further
development of the record.
acknowledges that he did not raise his Rule 11 objections
before the district court and that plain-error review
therefore applies. See United States v. Vonn, 535
U.S. 55, 59 (2002); United States v. Taylor, 627
F.3d 1012, 1017 (6th Cir. 2010). To establish plain error,
Williams "must show (1) that an error occurred in the
district court; (2) that the error was plain, i.e.,
obvious or clear; (3) that the error affected defendant's
substantial rights; and (4) that this adverse impact
seriously affected the fairness, integrity[, ] or public
reputation of the judicial proceedings." United
States v. McCreary-Redd, 475 F.3d 718, 721 (6th Cir.
2007) (quoting United States v. Koeberlein, 161 F.3d
946, 949 (6th Cir. 1998)).
first argues that the district court's failure to advise
him as to the accomplice element of Count 1 violated Rule
11(b)(1)(G). During the plea colloquy required under Rule 11,
the district court "must inform the defendant of, and
determine that the defendant understands, . . . the nature of
each charge to which the defendant is pleading." Fed. R.
Crim. P. 11(b)(1)(G). "At a minimum, the defendant must
understand the 'critical' or 'essential'
elements of the offense to which he or she pleads
guilty." United States v. Valdez, 362 F.3d 903,
909 (6th Cir. 2004).
contends that Count 1 of the indictment charged him as an
accomplice under 18 U.S.C. § 2 because he was not armed
during the offense and that he could not meaningfully
appreciate the nature of the charge without an explanation of
accomplice liability under that statute. Section 2 "does
not create a separate crime, but rather abolishes the common
law distinction between the principals and accessories."
United States v. Superior Growers Supply, Inc., 982
F.2d 173, 177-78 (6th Cir. 1992). Because aiding and abetting
is "a theory of liability 'embodied in every federal
indictment, whether specifically charged or not,' and not
a distinct substantive crime," United States v.
McGee, 529 F.3d 691, 695 (6th Cir. 2008) (quoting
United States v. Floyd, 46 Fed.Appx. 835, 836 (6th
Cir. 2002)), the district court was not required to advise
Williams about accomplice liability to satisfy Rule
11(b)(1)(G). See United States v. Camacho, 233 F.3d
1308, 1315 (11th Cir. 2000) (rejecting the defendant's
argument that the district court was required to explain
aiding and abetting theory); United States v. Hicks,
79 Fed.Appx. 749, 751 (6th Cir. 2003) (same).
the plea colloquy, the prosecutor, at the district
court's direction, read the elements for Count 1,
attempted armed credit union robbery. Williams affirmed that
these elements matched his behavior. These elements were also
set out in the plea agreement, which the district court
confirmed that Williams had read and discussed with his
counsel. In addition, the prosecutor read-and the plea
agreement set out-the elements for Count 2, brandishing a
firearm during and in relation to the attempted armed credit
union robbery, which specifically included accomplice
liability. The record reflects that Williams was informed of