United States v. Isaac Spencer

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4732
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ISAAC SPENCER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. James C. Fox,
Senior District Judge. (2:11-cr-00046-F-1)
Submitted: April 22, 2013 Decided: April 24, 2013
Before KING, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Terry F. Rose, Smithfield, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Kristine L. Fritz, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Isaac Spencer appeals from his conviction for
distribution of cocaine within one thousand feet of a school or
playground. On appeal, he asserts that the district court erred
in finding that a sufficient factual basis supported his plea.
Specifically, he asserts that the Fed. R. Crim. P. 11 hearing
failed to establish a factual basis that the drug transaction
occurred within one thousand feet of a school or playground. We
affirm.
Because Spencer did not move in the district court to
withdraw his guilty plea, our review is for plain error. * United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). To
establish plain error, Spencer “must show: (1) an error was
made; (2) the error is plain; and (3) the error affects
substantial rights.” United States v. Massenburg, 564 F.3d 337,
342-43 (4th Cir. 2009). “The decision to correct the error lies
within our discretion, and we exercise that discretion only if
the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. at 343 (internal
quotation marks omitted).
*
The parties dispute the standard of review. However, we
made clear in United States v. Bradley, 455 F.3d 453, 461 (4th
Cir. 2006) that "all forfeited Rule 11 errors [are] subject to
plain error review."
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Even assuming that the district court committed a
clear or obvious error in finding that a sufficient factual
basis supported Spencer’s guilty plea, see United States v.
Olano, 507 U.S. 725, 734 (1993) (explaining that “plain” error
is “synonymous with clear or . . . obvious” error (internal
quotation marks omitted)), Spencer still fails to establish
plain error because he does not show that the error affected his
substantial rights. In the guilty plea context, a defendant
meets this burden by showing that, but for the error, he would
not have entered his guilty plea. Massenburg, 564 F.3d at 343.
Spencer, however, does not suggest that he would not have pled
guilty but for the district court’s error, and the record does
not independently support such a conclusion.
Because Spencer cannot show that his substantial
rights were affected, he cannot show plain error. Accordingly,
we affirm his conviction. 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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