UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5028
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WALLACE RANDOLF DANNER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (CR-03-307-BR)
Submitted: July 22, 2005 Decided: August 19, 2005
Before WILKINSON, LUTTIG, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Walter H. Paramore, III, Jacksonville, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Wallace Randolf Danner appeals from his conviction for
possession of a firearm by a convicted felon. Danner contends
that, at his Fed. R. Crim. P. 11 hearing, the district court erred
by failing to inform him of the applicable minimum and maximum
sentences to which he would be subject should he be classified as
an armed career criminal. We affirm.
Because Danner did not assert a violation of Rule 11 in
the district court, his claim is reviewed for plain error.1 See
United States v. Vonn, 535 U.S. 55, 60-63 (2002) (applying plain
error standard of review where defendant moved to withdraw guilty
plea but did not assert Rule 11 error in the district court). Four
conditions must be met before this court will notice plain error:
(1) there was error; (2) the error was plain under current law;
(3) the error affected substantial rights, typically meaning that
the error affected the outcome of the proceedings; and (4) the
error seriously affected the fairness, integrity, or public
reputation of judicial proceedings. United States v. Olano, 507
U.S. 725, 732-37 (1993).
Applying the plain error test, we hold that the district
court erred and that the error was plain. See Fed. R. Crim. P.
11(b)(1)(H), (I) (requiring district court to inform defendant in
1
While Danner filed a motion to withdraw his plea, the motion
was based on ineffective assistance of counsel, not on a Rule 11
violation.
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open court about the applicable minimum and maximum sentences).
However, we further find that the error did not affect Danner’s
substantial rights.
To establish that a district court’s non-compliance with
Rule 11 had an effect on substantial rights, a defendant must show
a reasonable probability that, but for the error, he would not have
entered the plea. United States v. Dominguez Benitez, 542 U.S. 74
(2004). Danner argues that he would not have pled guilty had he
known that he could be sentenced as an armed career criminal.
However, the record establishes that Danner was aware (from the
plea agreement and the advice of his attorney) of the mandatory
minimum and maximum sentences applicable to armed career criminals;
he just believed that he was not an armed career criminal. The
district court’s advice regarding armed career criminal penalties
would not have changed Danner’s erroneous belief that Danner was
not an armed career criminal and, hence, would not have affected
his decision to plead guilty.2
2
Whether Danner’s erroneous belief was due to ineffective
assistance of counsel, his own failure to be forthcoming about his
criminal record, or an arguable issue of fact or law is not
apparent on the record. However, the reason for Danner’s mistaken
belief is not relevant to the question of whether he would have
pled guilty had the district court properly conducted the Rule 11
hearing. By Danner’s own admission in his motion to withdraw his
plea, he pled guilty because he was confident that he would not be
classified as an armed career criminal, not because he was unaware
that armed career criminal status carried harsher penalties.
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Because Danner has not shown that, absent the court’s
error, he would not have pled guilty, he has failed to show that
the court’s plain error affected his substantial rights.
Accordingly, we affirm. 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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