UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4583
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DENNIS RAY GREGORY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Margaret B. Seymour, District Judge.
(CR-04-461)
Submitted: October 5, 2005 Decided: November 30, 2005
Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John H. Hare, Assistant Federal Public Defender, Columbia, South
Carolina, for Appellant. James Strom Thurmond, Jr., United States
Attorney, Florence, South Carolina, Dean Arthur Eichelberger,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Dennis Ray Gregory pled guilty to knowing receipt of
child pornography, in violation of 18 U.S.C. § 2252A(a)(2) (2000),
and was sentenced to sixty months in prison. On appeal Gregory’s
counsel filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), asserting that the district court may not have
fully complied with Rule 11 of the Federal Rules of Criminal
Procedure in accepting Gregory’s guilty plea and may have imposed
sentence in violation of law or by incorrectly applying the
sentencing guidelines, but stating he found no meritorious claims
for appeal. Gregory was notified of his right to file a pro se
supplemental brief, but he has not done so. The Government elected
not to file a brief.
Gregory did not move in the district court to withdraw
his guilty plea; therefore, his challenge to the adequacy of the
Rule 11 hearing is reviewed for plain error. United States v.
Martinez, 277 F.3d 517, 525 (4th Cir. 2002) (holding that “plain
error analysis is the proper standard for review of forfeited error
in the Rule 11 context”). This analysis requires the court to
determine whether there was error, whether the error was plain, and
whether it affected the Defendant’s substantial rights. Id. at
524. If a defendant establishes these requirements, the court’s
“discretion is appropriately exercised only when failure to do so
would result in a miscarriage of justice, such as when the
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defendant is actually innocent or the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.”
United States v. Hughes, 401 F.3d 540, 555 (4th Cir. 2005)
(internal quotation marks and citation omitted).
Our review of the record reveals that the district court
complied with the requirements of Rule 11, except for advising
Gregory that the answers he gave at the hearing may be used against
him in a prosecution for perjury or false statement as required by
Rule 11(b)(1)(A). We find the district court erred in failing to
advise Gregory that his answers could be used against him in a
prosecution for perjury or false statement, but find the error does
not affect his substantial rights because there has been no
assertion either that Gregory’s statements at the plea hearing were
prejurious or false, or that the Government seeks to prosecute
Gregory for any false statements. Accordingly, we find Gregory’s
guilty plea was knowing and voluntary and properly accepted by the
district court.
After review of the record, we also conclude that the
mandatory minimum sentence imposed by the district court as
required by statute, 18 U.S.C. § 2252A(b)(1) (2000), was not
unreasonable. See United States v. Robinson, 404 F.3d 850, 862
(4th Cir. 2005). Finding no error, we affirm the judgment of the
district court.
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This court requires that counsel inform his client, in
writing, of his right to petition the Supreme Court of the United
States for further review. If the client 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 the client. 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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