UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4897
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARION IRBY,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., Senior
District Judge. (6:07-cr-01211-GRA-1)
Submitted: February 16, 2011 Decided: March 17, 2011
Before KING, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David B. Betts, Columbia, South Carolina, for Appellant.
Maxwell B. Cauthen, III, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marion Irby pled guilty to being a felon in possession
of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)
(2006). The district court sentenced Irby to 188 months’
imprisonment. In this appeal, Irby’s counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that there are no meritorious grounds for appeal, but
questioning whether Irby’s guilty plea was freely and
voluntarily made considering that the district court failed to
fully comply with Fed. R. Crim. P. 11. Irby filed a pro se
supplemental brief, asserting that the district court erred in
categorizing him as a career offender because his South Carolina
burglary convictions are not crimes of violence under U.S.
Sentencing Guidelines Manual (“USSG) § 4B1.1 (2007). The
Government elected not to file an answering brief.
The sole issue counsel raises on appeal is that Irby’s
guilty plea is involuntary because the district court failed to
inform him that, pursuant to Fed. R. Crim. P. 11(b)(1)(B), he
could persist in his plea of not guilty. Because Irby did not
raise this issue in the district court or move to withdraw his
guilty plea on the basis of this omission, we review the issue
for plain error. See United States v. Vonn, 535 U.S. 55, 59
(2002); United States v. Massenburg, 564 F.3d 337, 342 (4th Cir.
2009) (stating standard of review for unpreserved Rule 11
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error). To establish plain error, Irby must show that “(1) an
error was made; (2) the error is plain; and (3) the error
affects substantial rights.” Massenburg, 564 F.3d at 342-43.
To demonstrate an impact on his substantial rights, Irby must
establish that, but for the error, he would not have pled
guilty. Id. Even if plain error is found, we will exercise our
discretion to notice the error “only if the error seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks omitted).
Here, counsel is correct that the district court did
fail to inform Irby of his right to persist in his guilty plea.
This omission was an error that was plain, satisfying the first
two prongs of the plain error test. However, counsel does not
assert, and the record does not suggest, that Irby would not
have pled guilty had he received that information at the Rule 11
hearing. Therefore, Irby fails to establish the third prong of
plain error, that the error affected his substantial rights.
The district court otherwise complied with the
requirements of Rule 11 in accepting Irby’s guilty plea. Thus,
the district court adequately ensured that the guilty plea was
knowing and voluntary and supported by a sufficient factual
basis, and we affirm Irby’s conviction. See United States v.
DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991).
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Irby bases his pro se challenge to his sentence on a
misunderstanding of the basis for that sentence. Irby was
sentenced as an armed career criminal, 18 U.S.C. § 924(e)
(2006), USSG § 4B1.4, rather than as a career offender, USSG
§§ 4B1.1, 4B1.2. In order to be considered as a predicate
conviction under the Armed Career Criminal Act, a burglary need
not be of a dwelling. Taylor v. United States, 495 U.S. 575,
599 (1990) (“We conclude that a person has been convicted of
burglary for purposes of a § 924(e) enhancement if he is
convicted of any crime, regardless of its exact definition or
label, having the basic elements of unlawful or unprivileged
entry into, or remaining in, a building or structure, with
intent to commit a crime.”). In contrast, in order to be
considered as a predicate crime of violence for career offender
status, a burglary conviction must be of a dwelling. USSG
§ 4B1.2(a)(2) & cmt. 1. Because Irby was sentenced as an armed
career criminal, the district court did not err in considering
as prior violent felonies his state convictions for burglary of
commercial buildings. Irby therefore was properly sentenced as
an armed career criminal.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Irby’s conviction and sentence. This court
requires that counsel inform Irby, in writing, of the right to
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petition the Supreme Court of the United States for further
review. If Irby 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 Irby.
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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