UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4527

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MARQUISE BROWN, a/k/a Quez, Short Boy, a/k/a Key,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:16-cr-00064-MR-DLH-1)

Submitted: January 22, 2019 Decided: February 5, 2019

Before MOTZ and KING, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Joseph B. Gilbert, TARLTON POLK PLLC, Raleigh, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Marquise Brown appeals his conviction and 120-month sentence following his

guilty plea to conspiracy to distribute and to possess with intent to distribute more than

280 grams of cocaine base, in violation of

(b)(1)(A), 846 (2012).

Brown’s attorney has filed a brief pursuant to Anders v. California,

(1967),

concluding there are no meritorious grounds for appeal, but questioning whether plain

error occurred when Brown, with the advice of counsel, pleaded guilty to an indictment

alleging a drug offense with a 10-year mandatory minimum sentence. Brown has filed a

pro se brief in which he claims there was no factual basis to support his guilty plea.

Brown argues that the Government incorrectly calculated the drug quantity attributable to

him, which improperly subjected him to the 10-year mandatory minimum. Upon review,

we affirm.

Because Brown did not move in the district court to withdraw his guilty plea, we

review the Fed. R. Crim. P. 11 hearing for plain error. United States v. Martinez,

(4th Cir. 2002). To establish plain error, Brown must demonstrate “that an

error (1) was made, (2) is plain (i.e., clear or obvious), and (3) affects substantial rights.

Even if [Brown] satisfies these elements, we may exercise our discretion to correct the

error only if it seriously affects the fairness, integrity or public reputation of judicial

proceedings.” United States v. Strieper,

(4th Cir. 2012) (alteration,

citation, and internal quotation marks omitted). In the guilty plea context, a defendant

can establish prejudice by showing a reasonable probability that he would not have

2 pleaded guilty but for the Rule 11 error. United States v. Sanya,

(4th

Cir. 2014).

After reviewing the record, we conclude that the magistrate judge properly

ascertained that Brown’s plea was both knowing and voluntary. Contrary to Brown’s

claims that he was improperly subjected to a 10-year statutory minimum, the magistrate

judge thoroughly reviewed the nature of the charge, the mandatory minimum penalty, and

the factual basis for the plea with Brown. Brown confirmed that he understood that he

was subject to a 10-year statutory minimum, admitted to his involvement in a conspiracy

involving more than 280 grams of cocaine base as charged in the indictment, and stated

his agreement with the factual basis attached to the plea agreement and recited by the

Government. See Fields v. Att’y Gen.,

(4th Cir. 1992) (“Absent

clear and convincing evidence to the contrary, a defendant is bound by the

representations he makes under oath during a plea colloquy.”). Our review of the record

reveals that the magistrate judge fully complied with Rule 11, addressed all of its

requirements, and properly ascertained that Brown’s plea was supported by a sufficient

factual basis. We therefore discern no plain error in the plea colloquy.

Counsel also raises a claim of ineffective assistance of counsel, suggesting that

Brown “did not fully understand counsel’s recommendation that he agree to stipulate

responsibility for over 280 grams of crack cocaine (and its attendant 10-year minimum

penalty for the conspiracy guilty plea).” (Anders Br. (ECF No. 18) at 7). We conclude

that no conclusive evidence of ineffective assistance appears on the face of the record and

3 any such claims should be raised, if at all, in a

(2012) motion. See

United States v. Faulls,

(4th Cir. 2016).

In accordance with Anders, we have reviewed the entire record in this case and

have found no meritorious grounds for appeal. We therefore affirm the district court’s

amended judgment. This court requires that counsel inform Brown, in writing, of the

right to petition the Supreme Court of the United States for further review. If Brown

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 Brown. 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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