UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-4065

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ISIDRO ANTONIO CRUZ,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:19-cr-00503-BO-1)

Submitted: December 30, 2021 Decided: January 24, 2022 Amended: January 24, 2022

Before DIAZ and QUATTLEBAUM, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

M. Linsay Boyce, DYSART WILLIS HOUCHIN & HUBBARD PLLC, Raleigh, North Carolina, for Appellant. David A. Bragdon, Assistant United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Isidro Antonio Cruz pleaded guilty, without a written plea agreement, to possessing

with the intent to distribute 50 or more grams of methamphetamine, in violation of

(a)(1). The district court sentenced Cruz to 132 months’ imprisonment and 4

years of supervised release. On appeal, Cruz’s counsel has filed a brief pursuant to Anders

v. California,

(1967), questioning whether the plea was voluntary, whether

the sentence is reasonable, and whether trial counsel rendered ineffective assistance at

sentencing. Cruz has filed a pro se supplemental brief contending that trial counsel

promised him he would receive a 60-to-72-month sentence. For the reasons that follow,

we affirm Cruz’s conviction, vacate his sentence, and remand for resentencing.

We turn first to the validity of Cruz’s guilty plea. Before accepting a guilty plea,

the district court must conduct a plea colloquy during which it must inform the defendant

of, and determine that the defendant understands, the rights he is relinquishing by pleading

guilty, the charges to which he is pleading, and the maximum and mandatory minimum

penalties he faces. Fed. R. Crim. P. 11(b)(1). The court 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 a factual basis supports the plea, Fed. R.

Crim. P. 11(b)(3).

Because Cruz did not seek to withdraw his guilty plea, we review the adequacy of

the Rule 11 hearing for plain error. United States v. Williams,

(4th Cir.

2016). “Under the plain error standard, [we] will correct an unpreserved error if (1) an

error was made; (2) the error is plain; (3) the error affects substantial rights; and (4) the

2 error seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

United States v. Harris,

(4th Cir. 2018) (internal quotation marks

omitted). “In the Rule 11 context, this inquiry means that [the defendant] must demonstrate

a reasonable probability that, but for the error, he would not have pleaded guilty.” United

States v. Sanya,

(4th Cir. 2014) (internal quotation marks omitted).

Here, the record reveals that, although the district court did not discuss a number of the

rights Cruz was waiving by pleading guilty, these Rule 11 errors did not affect Cruz’s

substantial rights. Moreover, we conclude that Cruz’s claim of ineffective assistance of

counsel is not cognizable on direct appeal because ineffectiveness does not conclusively

appear on the face of the record. See United States v. Faulls,

(4th Cir.

2016). Accordingly, we conclude that Cruz’s guilty plea is valid.

We turn next to Cruz’s sentence. We review a sentence “under a deferential abuse-

of-discretion standard.” Gall v. United States,

(2007). In reviewing a

sentence for procedural reasonableness, we “ensure that the district court committed no

significant procedural error.”

. Here, although the district court failed to explain

the sentence it imposed, we review this issue only for plain error because the district court

imposed a sentence below the one Cruz requested. See United States v. Lynn,

(4th Cir. 2010). Because the district court imposed a sentence below the

Sentencing Guidelines range, Cruz has not demonstrated that this error affected his

substantial rights. Turning to the substantive reasonableness of Cruz’s sentence, “[a]ny

sentence that is within or below a properly calculated Guidelines range is presumptively

reasonable.” United States v. Louthian,

(4th Cir. 2014). “Such a

3 presumption can only be rebutted by showing that the sentence is unreasonable when

measured against the

(a) factors.”

We conclude that the below-

Guidelines sentence is substantively reasonable, particularly given that Cruz requested a

sentence within the Guidelines range.

However, our review of Cruz’s sentence identifies one meritorious issue. When

announcing the terms of supervised release during the sentencing hearing, the district court

listed only a few conditions. In its written judgment, however, the court included the

statutorily imposed mandatory conditions, 13 “standard” conditions, and several special

conditions that the court did not announce during the sentencing hearing.

While a district court need not orally pronounce all mandatory conditions, “all non-

mandatory conditions of supervised release must be announced at a defendant’s sentencing

hearing.” United States v. Rogers,

(4th Cir. 2020). The district court

“may satisfy its obligation to orally pronounce discretionary conditions through

incorporation” by reference to, for example, the standard conditions recommended by the

Guidelines.

. Here, the district court failed to orally pronounce the standard

conditions and several of the special conditions imposed in the written judgment.

Moreover, the court did not incorporate those conditions by reference to the Guidelines or

otherwise notify Cruz that he would be subject to any discretionary conditions beyond

those announced at the sentencing hearing.

We recently clarified that the appropriate remedy when the district court fails to

announce discretionary conditions of supervised release that are later included in the

written judgment is to vacate the sentence and remand for a full resentencing. See United

4 States v. Singletary,

, 346 & n.4 (4th Cir. 2021). Because the sentence was

not properly imposed, we do not address any other potential issues raised by counsel or

Cruz related to Cruz’s sentence at this juncture. See Singletary,

(declining to consider additional challenges to original sentence).

In accordance with Anders, we have reviewed the entire record, and we have found

no other meritorious grounds for appeal. Accordingly, we affirm Cruz’s conviction, vacate

his sentence, and remand for resentencing.

This court requires that counsel inform Cruz, in writing, of the right to petition the

Supreme Court of the United States for further review. If Cruz 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 Cruz. 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, VACATED IN PART, AND REMANDED

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