United States v. Victor Hugo Cruz-Cortez

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4034

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

VICTOR HUGO CRUZ-CORTEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Senior
District Judge. (3:14-cr-00113-JRS-1)

Submitted: July 20, 2015 Decided: July 31, 2015

Before WILKINSON and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Geremy C. Kamens, Acting Federal Public Defender, Frances H.
Pratt, Valencia D. Roberts, Assistant Federal Public Defenders,
Alexandria, Virginia, for Appellant. Stephen David Schiller,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Victor Hugo Cruz-Cortez (Cruz) pled guilty to illegal

reentry after having been removed following conviction for an

aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2)

(2012), and was sentenced to 41 months’ imprisonment.

On appeal, counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), stating that there are no

meritorious issues for appeal, but raising as an issue for

review whether Cruz’s guilty plea is valid when there is no

recording of the guilty plea hearing. Cruz was informed of his

right to file a pro se supplemental brief, but he has not done

so. The Government declined to file a brief. We affirm.

In this case, the magistrate judge conducted the guilty

plea colloquy pursuant to Fed. R. Crim. P. 11 and recommended

that the district court adopt its acceptance of Cruz’s guilty

plea. Cruz, however, failed to file objections to the

magistrate judge’s report and has therefore waived appellate

review of this issue. Fed. R. Crim. P. 59(b); United States v.

Schronce, 727 F.2d 91, 93–94 (4th Cir. 1984) (“We do not

believe . . . that the [Federal Magistrates] Act can be

interpreted to permit a party . . . to ignore his right to file

objections with the district court without imperiling his right

to raise the objections in the circuit court of appeals.”).

2
Moreover, the challenge fails on the merits. Because Cruz

failed to challenge the validity of his guilty plea in the

district court on the basis he now advances, our review is for

plain error only. Fed. R. Crim. P. 52(b); Puckett v. United

States, 556 U.S. 129, 134-36 (2009); United States v. Martinez,

277 F.3d 517, 524-27 (4th Cir. 2002). To establish plain error,

Cruz must demonstrate that an error was made, the error was

plain, and the error affected his substantial rights.

United States v. Massenburg, 564 F.3d 337, 342-343 (4th Cir.

2009). In the guilty plea context, a defendant meets his burden

to establish that a plain error affected his substantial rights

by showing a reasonable probability that he would not have pled

guilty but for the Rule 11 omission. Id.

Although the absence in this case of a recording of the

guilty plea proceeding * constitutes a plain error by the district

court, see 28 U.S.C. § 753(b) (2012); Fed. R. Crim. P. 11(g);

United States v. Hanno, 21 F.3d 42, 48 (4th Cir. 1994);

United States v. Gillis, 773 F.2d 549, 554 (4th Cir. 1985);

United States v. Gallo, 763 F.2d 1504, 1530 (6th Cir. 1985);

Herron v. United States, 512 F.2d 439, 441 (4th Cir. 1975)

(per curiam), the error did not affect Cruz’s substantial rights

* The guilty plea proceeding was recorded, but, as a result
of mechanical problems with the recording, no transcript of the
proceeding is available.

3
because Cruz does not suggest — and the record contains no

indication that — but for the district court’s plain error, Cruz

would not have entered his guilty plea. Cruz thus fails to

establish plain error rendering his guilty plea invalid.

In accordance with Anders, we also have reviewed the

remainder of the record in this case and have found no

meritorious issues for appeal. We therefore affirm the district

court’s judgment. This court requires that counsel inform Cruz,

in writing, of the right to petition the Supreme Court of the

United States for further review. If Cruz 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 Cruz.

We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before

this court and argument would not aid the decisional process.

AFFIRMED