United States v. Victor Hugo Cruz-Cortez , 608 F. App'x 174 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4034
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICTOR HUGO CRUZ-CORTEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Senior
District Judge. (3:14-cr-00113-JRS-1)
Submitted: July 20, 2015 Decided: July 31, 2015
Before WILKINSON and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Geremy C. Kamens, Acting Federal Public Defender, Frances H.
Pratt, Valencia D. Roberts, Assistant Federal Public Defenders,
Alexandria, Virginia, for Appellant. Stephen David Schiller,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Victor Hugo Cruz-Cortez (Cruz) pled guilty to illegal
reentry after having been removed following conviction for an
aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2)
(2012), and was sentenced to 41 months’ imprisonment.
On appeal, counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal, but raising as an issue for
review whether Cruz’s guilty plea is valid when there is no
recording of the guilty plea hearing. Cruz was informed of his
right to file a pro se supplemental brief, but he has not done
so. The Government declined to file a brief. We affirm.
In this case, the magistrate judge conducted the guilty
plea colloquy pursuant to Fed. R. Crim. P. 11 and recommended
that the district court adopt its acceptance of Cruz’s guilty
plea. Cruz, however, failed to file objections to the
magistrate judge’s report and has therefore waived appellate
review of this issue. Fed. R. Crim. P. 59(b); United States v.
Schronce, 727 F.2d 91, 93–94 (4th Cir. 1984) (“We do not
believe . . . that the [Federal Magistrates] Act can be
interpreted to permit a party . . . to ignore his right to file
objections with the district court without imperiling his right
to raise the objections in the circuit court of appeals.”).
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Moreover, the challenge fails on the merits. Because Cruz
failed to challenge the validity of his guilty plea in the
district court on the basis he now advances, our review is for
plain error only. Fed. R. Crim. P. 52(b); Puckett v. United
States, 556 U.S. 129, 134-36 (2009); United States v. Martinez,
277 F.3d 517, 524-27 (4th Cir. 2002). To establish plain error,
Cruz must demonstrate that an error was made, the error was
plain, and the error affected his substantial rights.
United States v. Massenburg, 564 F.3d 337, 342-343 (4th Cir.
2009). In the guilty plea context, a defendant meets his burden
to establish that a plain error affected his substantial rights
by showing a reasonable probability that he would not have pled
guilty but for the Rule 11 omission. Id.
Although the absence in this case of a recording of the
guilty plea proceeding * constitutes a plain error by the district
court, see 28 U.S.C. § 753(b) (2012); Fed. R. Crim. P. 11(g);
United States v. Hanno, 21 F.3d 42, 48 (4th Cir. 1994);
United States v. Gillis, 773 F.2d 549, 554 (4th Cir. 1985);
United States v. Gallo, 763 F.2d 1504, 1530 (6th Cir. 1985);
Herron v. United States, 512 F.2d 439, 441 (4th Cir. 1975)
(per curiam), the error did not affect Cruz’s substantial rights
* The guilty plea proceeding was recorded, but, as a result
of mechanical problems with the recording, no transcript of the
proceeding is available.
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because Cruz does not suggest — and the record contains no
indication that — but for the district court’s plain error, Cruz
would not have entered his guilty plea. Cruz thus fails to
establish plain error rendering his guilty plea invalid.
In accordance with Anders, we also have reviewed the
remainder of the record in this case and have found no
meritorious issues for appeal. We therefore affirm the district
court’s judgment. This court requires that counsel inform Cruz,
in writing, of the right to petition the Supreme Court of the
United States for further review. If Cruz requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Cruz.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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