UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-4456

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

AUBREY BROWN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Arenda L. Wright Allen, District Judge. (4:17-cr-00019-AWA-DEM-1)

Submitted: January 30, 2019 Decided: February 8, 2019

Before GREGORY, Chief Judge, RICHARDSON, Circuit Judge, and HAMILTON, Senior Circuit Judge.

Affirmed in part and dismissed in part by unpublished per curiam opinion.

Jamison P. Rasberry, RASBERRY LAW, P.C., Virginia Beach, Virginia, for Appellant. Kaitlin Gratton Cooke, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Aubrey Brown appeals his convictions and 95-month sentence imposed by the

district court after he pleaded guilty to conspiracy to commit bank, mail, and wire fraud

(Count 1), in violation of

(2012), and aggravated identity theft (Count

7), in violation of 18 U.S.C. § 1028A (2012). Brown’s counsel has filed a brief pursuant

to Anders v. California,

(1967), questioning whether the magistrate judge

complied with Fed. R. Crim. P. 11 in accepting Brown’s plea and whether Brown’s

sentence is substantively reasonable. Brown did not file a pro se supplemental brief

despite being notified of his right to do so. The Government moves to dismiss this appeal

as barred by the appellate waiver contained within Brown’s plea agreement. We affirm

in part and dismiss in part.

Counsel first questions whether the magistrate judge complied with Rule 11, but

counsel points to no specific error. Brown’s waiver of appellate rights does not prevent

him from challenging the validity of the plea itself. See United States v. McCoy,

(4th Cir.), cert. denied,

(2018). We therefore deny in part

the Government’s motion to dismiss and review Brown’s challenge to the adequacy of

the plea colloquy for plain error. See United States v. Williams,

(4th

Cir. 2016) (stating standard of review); Henderson v. United States,

(2013) (describing standard).

Before accepting a guilty plea, a magistrate judge must conduct a plea colloquy in

which he informs the defendant of, and determines the defendant understands, the rights

he is relinquishing by pleading guilty, the charges to which he is pleading, and the

2 maximum and mandatory minimum penalties he faces. Fed. R. Crim. P. 11(b)(1); United

States v. DeFusco,

(4th Cir. 1991). The magistrate judge also must

ensure that the plea was voluntary and not the result of threats, force, or promises not

contained in the plea agreement, Fed. R. Crim. P. 11(b)(2), and “that there is a factual

basis for the plea,” Fed. R. Crim. P. 11(b)(3). Here, the magistrate judge failed to warn

Brown of the immigration consequences of his plea, see Fed. R. Crim. P. 11(b)(1)(O),

and failed to inform him that he was entitled to counsel at every stage of the proceedings

and had the right to testify at trial, see Fed. R. Crim. P. 11(b)(1)(D), (E). We conclude

that these minor omissions did not affect Brown’s substantial rights, that Brown was

competent to enter his plea, see United States v. Nicholson,

(4th Cir.

2012), that he entered his plea knowingly and voluntarily, and that a factual basis

supported the plea, see DeFusco,

.

Turning to Brown’s appeal of his sentence, where, as here, the Government seeks

to enforce the appeal waiver and Brown has not alleged a breach of the plea agreement,

we will enforce the waiver if it is valid and the issue being appealed falls within the

waiver’s scope. United States v. Dillard,

(4th Cir. 2018). Brown

does not contest that he knowingly and intelligently waived his right to appeal, see

United States v. Manigan,

(4th Cir. 2010), and our de novo review of

the plea hearing leads us to conclude that the waiver is valid and enforceable, see United

States v. Cohen,

(4th Cir. 2018) (stating standard of review).

Moreover, Brown’s challenge to the substantive reasonableness of his sentence falls

within the waiver’s scope.

3 Accordingly, we grant in part the Government’s motion to dismiss and dismiss the

appeal of the sentence, and we deny in part the Government’s motion and affirm Brown’s

convictions. In accordance with Anders, we have reviewed the record and have found no

meritorious grounds for appeal that fall outside the scope of the waiver. 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 IN PART, DISMISSED IN PART

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