United States v. Irby

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4897

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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