United States v. Barber ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5133
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LEONARDO ANTOINE BARBER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
Judge. (7:06-cr-00147-HMH)
Submitted: March 21, 2007 Decided: April 30, 2007
Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Margaret A. Chamberlain, CHAMBERLAIN LAW FIRM, Greenville, South
Carolina, for Appellant. Regan Alexandra Pendleton, Assistant
United States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leonardo Antoine Barber pleaded guilty to one count of
conspiracy to possess with intent to distribute and to distribute
five kilograms or more of cocaine and fifty grams or more of
cocaine base, in violation of 21 U.S.C.A. §§ 846, 841(a)(1),
(b)(1)(A) (West 1999 & Supp. 2006). At sentencing, Barber and the
Government agreed that a total offense level of twenty-four applied
and this offense level, combined with Barber’s criminal history
category II, yielded a sentencing range of 60 to 71 months of
imprisonment under the Sentencing Guidelines.1 The district court
sentenced Barber to 62 months of imprisonment. On appeal, counsel
filed an Anders2 brief, questioning whether there was a proper
factual basis supporting Barber’s guilty plea, but concluding that
there are no meritorious issues for appeal. Barber was advised of
his right to file a pro se supplemental brief, but he has not done
so.
Our review of the plea hearing transcript reveals that
the district court ensured that Barber understood the charges
against him, the maximum and minimum penalties, and ascertained
that Barber’s plea was voluntary. With regard to the factual basis
for Barber’s plea, the Government’s attorney summarized the facts
underlying the charge and Barber agreed with the Government’s
1
U.S. Sentencing Guidelines Manual (2005).
2
Anders v. California, 386 U.S. 738 (1967).
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factual recitation. Our review of the plea hearing convinces us
that the factual basis was sufficient. See United States v. Carr,
271 F.3d 172, 179 & n.6 (4th Cir. 2001).
Although Barber’s counsel does not raise the point, we
note that the district court failed to inform Barber that he could
persist in his initial plea of not guilty. Fed. R. Crim. P.
11(b)(1)(B). And although the court advised Barber that he was
forgoing his right to a jury trial by pleading guilty, the court
did not enumerate the specific trial rights Barber was giving up,
such as the right to assistance of counsel at trial, the right to
testify and present evidence, the right to confront and
cross-examine witnesses, and the right against compelled
self-incrimination, as required by Fed. R. Crim. P. 11(b)(1)(E).
Because Barber did not move in the district court to
withdraw his guilty plea, any error in the Rule 11 hearing is
reviewed for plain error. United States v. Martinez, 277 F.3d 517,
525 (4th Cir. 2002). To demonstrate plain error, Barber must
establish that error occurred, that it was plain, and that it
affected his substantial rights. United States v. Hughes, 401 F.3d
540, 547-48 (4th Cir. 2005). To establish that a district court’s
non-compliance with Rule 11 affected substantial rights, a
defendant bears the burden of showing a reasonable probability
that, but for the error, he would not have entered the plea.
United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
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We conclude that the omissions in the plea colloquy did
not affect Barber’s substantial rights. See United States v.
Stead, 746 F.2d 355, 356-57 (6th Cir. 1984) (failure to advise a
defendant of his right against self-incrimination and his right to
confront and cross-examine witnesses did not require his guilty
plea to be set aside); see also United States v. Gomez-Cuevas, 917
F.2d 1521, 1525-26 (10th Cir. 1990) (failure to advise the
defendant of his right to confront and cross-examine witnesses was
harmless error where the guilty plea was voluntary and the
defendant understood the charges against him). Barber’s plea
agreement addressed and identified his waiver of specific trial
rights. During the plea hearing, Barber acknowledged that he
thoroughly reviewed the plea agreement with his attorney and
understood all its provisions. Moreover, Barber was aware that he
could persist in his plea of not guilty, because the very purpose
of the plea hearing was to change his plea from not guilty to
guilty. See United States v. Knox, 287 F.3d 667, 670 (7th Cir.
2002). The record provides no basis to believe that Barber would
not have pled guilty had the district court been more exacting in
its conduct of the plea hearing. See Martinez, 277 F.3d at 532.
In accordance with Anders, we have thoroughly reviewed
the entire record in this case and have found no meritorious issues
for appeal. We therefore affirm Barber’s conviction and sentence.
This court requires that counsel inform her 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,
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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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