United States v. Seabrooke ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4668
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH LEVIN SEABROOKE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(CR-02-411)
Submitted: June 9, 2004 Decided: July 6, 2004
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Andrew D. Grimes, LAW OFFICE OF ANDREW D. GRIMES, Summerville,
South Carolina, for Appellant. J. Strom Thurmond, Jr., United
States Attorney, Mary Gordon Baker, Assistant United States
Attorney, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Joseph Levin Seabrooke appeals his conviction and
sentence to 144 months in prison following his guilty plea to using
a minor to engage in sexually explicit conduct for production of
visual depictions of such conduct in violation of 18 U.S.C.
§ 2251(a) (2000). Seabrooke’s attorney has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), asserting, in his
opinion, there are no meritorious legal issues but arguing the
district court committed plain error under Fed. R. Crim. P. 11 when
it failed to advise Seabrooke of its authority to order
restitution. Seabrooke has been informed of his right to file a
pro se supplemental brief but has not done so. Because we conclude
that any error by the district court did not affect Seabrooke’s
substantial rights, we affirm.
Since Seabrooke did not object during the district
court’s plea colloquy or seek to withdraw his plea in the district
court, this Court’s review is for plain error. See United
States v. Vonn, 535 U.S. 55, 59 (2002). Consequently, Seabrooke
must show: (1) error; (2) that was plain; (3) that affected his
substantial rights; and (4) this Court should exercise its
discretion to notice the error. See United States v. Olano, 507
U.S. 725, 732 (1993). To establish that his substantial rights
were affected, Seabrooke must demonstrate that absent the error, he
would not have entered his guilty plea. See United States v.
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Martinez, 277 F.3d 517, 532 (4th Cir.), cert. denied, 537 U.S. 899(2002). We may consider the entire record when determining the
effect of any error on Seabrooke’s substantial rights. See Vonn,
535 U.S. at 74-75.
Although Seabrooke’s plea agreement put him on notice
that the district court might order restitution, by requiring his
immediate payment of any court-imposed monetary penalties
specifically including restitution, the district court did not
comply with the requirement of Fed. R. Crim. P. 11(b)(1)(K) that it
advise Seabrooke prior to accepting his guilty plea of its
authority to order restitution. The district court did, however,
advise Seabrooke that he faced a maximum possible fine of $250,000.
Moreover, the district court did not order Seabrooke to pay any
restitution, fine, or other monetary penalty, other than the one-
hundred dollar special assessment. Finally, Seabrooke’s guilty
plea effected dismissal of two other counts charged in the
indictment carrying significant additional penalties. Under these
circumstances, we find that Seabrooke has failed to demonstrate his
substantial rights were affected by the district court’s failure to
inform him of its authority to order restitution. See Martinez,
277 F.3d at 532-33; United States v. Fentress, 792 F.2d 461, 465-66
(4th Cir. 1986).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
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appeal. We therefore affirm Seabrooke’s conviction and sentence.
This court requires that counsel inform his client, in writing, of
his right to petition the Supreme Court of the United States for
further review. If the client 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 the client.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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