UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4627
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRANCISCO DE LA CRUZ-ORTIZ, a/k/a Francisco
Lopez, a/k/a Manuel Francisco De La Cruz-
Ortiz,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (CR-04-3)
Submitted: April 26, 2006 Decided: June 8, 2006
Before WILKINSON, LUTTIG,* and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
G. Wells Dickson, Jr., Charleston, South Carolina, for Appellant.
Maxwell B. Cauthen, III, OFFICE OF THE UNITED STATES ATTORNEY,
Greenville, South Carolina, for Appellee.
*
Judge Luttig was a member of the original panel but did not
participate in this decision. This opinion is filed by quorum of
the panel pursuant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Francisco De La Cruz-Ortiz appeals the district court’s
judgment entered pursuant to his guilty plea for illegal reentry
after deportation subsequent to a conviction for an aggravated
felony in violation of 8 U.S.C. §§ 1326(a), (b)(2) (2000). He
received a forty-six month prison sentence. Cruz-Ortiz’s attorney
has filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), certifying there are no meritorious issues for appeal.
Cruz-Ortiz has filed a pro se supplemental brief claiming the
district court did not fully comply with the requirements of Fed.
R. Crim. P. 11 and that the district court erred in imposing its
sentence. Finding no reversible error, we affirm.
Cruz-Ortiz claims that the district court did not fully
comply with the requirements of Fed. R. Crim. P. 11 during his
guilty plea hearing. Because Cruz-Ortiz did not object to or seek
to withdraw his guilty plea on the basis of this omission, our
review is for plain error. United States v. Martinez, 277 F.3d
517, 527 (4th Cir. 2002). Under plain error review, this court may
notice an error that was not preserved by timely objection only if
the defendant can demonstrate that: (1) there was error; (2) it
was plain; and (3) the error affected the defendant’s substantial
rights. United States v. Olano, 507 U.S. 725, 732-34 (1993). Even
when these three conditions are satisfied, this court may exercise
its discretion to notice the error only if the error “seriously
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affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. at 736 (internal quotation marks omitted).
The district court conducted a thorough Rule 11 colloquy
except for one question. In response to the district court’s
question of whether anyone threatened, forced, or coerced him into
pleading guilty, Cruz-Ortiz responded, “Yes, sir.” Neither the
district court nor counsel pursued the matter any further at the
plea hearing or at sentencing. Here, there was error, because the
district court failed to conform to Rule 11 in its entirety by not
pursuing Cruz-Ortiz’s affirmative answer. This error was plain
because it was “clear” or “obvious.” Olano, 507 U.S. at 734.
However, this error did not affect Cruz-Ortiz’s
substantial rights. An error is substantial if it was so
prejudicial as to affect the outcome of the proceedings. Id.;
Martinez, 277 F.3d at 532. In the guilty plea context, to prove
that an error is substantial, the defendant must show that, but for
the error, he would not have pled guilty. Id. Cruz-Ortiz does not
provide any explanation of how he was coerced to plead guilty. At
every other opportunity, including the district court’s next
question, Cruz-Ortiz readily admitted his guilt. Cruz-Ortiz was
well aware of his rights, and, given that he does not allege that
but for the Rule 11 error, he would not have pled guilty, that
error did not affect his substantial rights. Therefore, the
district court committed no reversible error.
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Cruz-Ortiz claims that the district court erred under
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 764-68
(2005), when it enhanced his sentence sixteen levels using a prior
conviction that was not charged in his indictment. However, the
government need not allege in its indictment and need not prove
beyond reasonable doubt that a defendant had prior convictions for
a district court to use those convictions for purposes of enhancing
a sentence. Almendarez-Torres v. United States, 523 U.S. 224, 245
(1998). U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A) (2005)
applies a sixteen level enhancement if the defendant was previously
deported after, among other things, a “crime of violence,” defined
in the commentary to include an “aggravated assault.” USSG
§ 2L1.2, comment (n.1(B)(iii)). In 2001, Cruz-Ortiz was convicted
in South Carolina of “Assault and Battery of a High and Aggravated
Nature.” As the definition of Cruz-Ortiz’s prior crime inherently
identified the offense as a crime of violence, the district court
did not violate Cruz-Ortiz’s Sixth Amendment rights. See
Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 1262
(2005); United States v. Washington, 404 F.3d 834, 840-41 (4th Cir.
2005).
Cruz-Ortiz finally argues that the district court’s
treatment of the sentencing guidelines as mandatory requires
resentencing. Although the district court followed the law in
effect at the time of Cruz-Ortiz’s sentencing, Cruz-Ortiz is
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correct that subsequent legal developments make it clear that the
district court erred in treating the guidelines as mandatory, see
United States v. Hughes, 401 F.3d 540, 547-48 (4th Cir. 2005).
Nevertheless, we have held that in the plain error context, the
error of sentencing under the mandatory guidelines regime does not
warrant a presumption of prejudice, nor is it a structural error.
United States v. White, 405 F.3d 208, 224 (4th Cir. 2005). Nothing
in the record suggests the error in applying the guidelines as
mandatory affected the court’s ultimate determination of Cruz-
Ortiz’s sentence. Accordingly, Cruz-Ortiz cannot satisfy the
prejudice requirement of the plain error standard.
Pursuant to Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm
Cruz-Ortiz’s conviction and sentence. 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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