UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5176
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JUSTIN JAMIL MATHIS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (6:06-cr-00643)
Submitted: April 18, 2007 Decided: May 31, 2007
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
James Barlow Loggins, Assistant Federal Public Defender,
Greenville, South Carolina, for Appellant. Elizabeth Jean Howard,
OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Justin Jamil Mathis pleaded guilty to one count of bank
robbery, in violation of 18 U.S.C. § 2113(a) (2000). At
sentencing, Mathis and the Government agreed that a total offense
level of twenty-nine applied and this offense level, combined with
a criminal history category VI,1 yielded a sentencing range of 151
to 188 months of imprisonment under the Sentencing Guidelines.2
The district court sentenced Mathis to 151 months of imprisonment.
On appeal, counsel filed an Anders3 brief, concluding that there
are no meritorious issues for appeal, but raising the question of
whether the district court complied with the requirements of Fed.
R. Crim. P. 11. Mathis was advised of his right to file a pro se
supplemental brief, but he has not done so.
Our review of the plea hearing transcript reveals that,
while the district court ensured that Mathis understood the charges
against him and the maximum and minimum penalties, and ascertained
that Mathis’s plea was voluntary, the district court failed to
inform Mathis that he could persist in his initial plea of not
guilty. See Fed. R. Crim. P. 11(b)(1)(B). And although the court
advised Mathis that he was forgoing his right to a jury trial by
pleading guilty and that if he went to trial he would have the
1
Mathis qualified as a career offender.
2
U.S. Sentencing Guidelines Manual (2005).
3
Anders v. California, 386 U.S. 738 (1967).
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rights to the assistance of counsel, to testify and to present
evidence, as well as the right against compelled
self-incrimination, the court failed to specifically inform him
that he would also have the right to confront and cross-examine
witnesses against him, as required by Fed. R. Crim. P. 11(b)(1)(E).
Because Mathis did not move in the district court to
withdraw his guilty plea, any error in the Rule 11 hearing is
reviewed for plain error. United States v. Martinez, 277 F.3d 517,
525 (4th Cir. 2002). To demonstrate plain error, Mathis must
establish that error occurred, that it was plain, and that it
affected his substantial rights. United States v. Hughes, 401 F.3d
540, 547-48 (4th Cir. 2005). To establish that a district court’s
non-compliance with Rule 11 affected substantial rights, a
defendant bears the burden of showing a reasonable probability
that, but for the error, he would not have entered the plea.
United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
We conclude that here, because the district court
reviewed all of the other trial rights enumerated in Rule 11, and
also addressed other trial rights, review of which is not mandated
by Rule 11, the court’s failure to specifically discuss the right
to confront and cross-examine witnesses in the plea colloquy did
not affect Mathis’s substantial rights. The record provides no
basis to believe that Mathis would not have pled guilty but for
this omission. See Martinez, 277 F.3d at 532; see also United
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States v. Stead, 746 F.2d 355, 356-57 (6th Cir. 1984) (failure to
advise a defendant of his right against self-incrimination and his
right to confront and cross-examine witnesses did not require his
guilty plea to be set aside); see also United States v.
Gomez-Cuevas, 917 F.2d 1521, 1525-26 (10th Cir. 1990) (failure to
advise the defendant of his right to confront and cross-examine
witnesses was harmless error where the guilty plea was voluntary
and the defendant understood the charges against him). We also
conclude that the district court’s failure to specifically counsel
Mathis that he could persist in his initial plea of not guilty did
not constitute plain error, as the very purpose of the plea hearing
was to permit Mathis to change his plea from not guilty to guilty.
See United States v. Knox, 287 F.3d 667, 670 (7th Cir. 2002).
In accordance with Anders, we have thoroughly reviewed
the entire record in this case and have found no meritorious issues
for appeal. We therefore affirm Mathis’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
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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