UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4449
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TORREY DEVON WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:10-cr-00178-BR-1)
Submitted: January 20, 2012 Decided: January 27, 2012
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James C. White, Michelle M. Walker, LAW OFFICES OF JAMES C.
WHITE, P.C., Chapel Hill, North Carolina, for Appellant. Thomas
G. Walker, United States Attorney, Jennifer P. May-Parker,
Kristine L. Fritz, Assistant United States Attorneys, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Torrey Devon Williams appeals from his conviction for
possession of a firearm by a convicted felon, which was entered
pursuant to his guilty plea. 1 On appeal, he asserts that the
district court erred in finding at his Fed. R. Crim. P. 11
hearing that a sufficient factual basis supported his plea.
Specifically, Williams contends that there was an insufficient
factual basis to support the element of the offense requiring
that the possession of the firearm was “in or affecting
commerce.” 18 U.S.C. § 922(g) (2006). We affirm.
Because Williams did not move in the district court to
withdraw his guilty plea, our review is for plain error. 2 United
States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). To
establish plain error, Williams “must show: (1) an error was
made; (2) the error is plain; and (3) the error affects
substantial rights.” United States v. Massenburg, 564 F.3d 337,
342-43 (4th Cir. 2009). “The decision to correct the error lies
1
In his initial brief on appeal, Williams challenged the
sentence imposed on this firearm conviction and a conviction for
possession with intent to distribute marijuana. His sentencing
claims were dismissed based upon the waiver of his right to
appeal in his plea agreement.
2
The parties dispute the standard of review. However, we
made clear in United States v. Bradley, 455 F.3d 453, 461 (4th
Cir. 2006) that "all forfeited Rule 11 errors [are] subject to
plain error review."
2
within our discretion, and we exercise that discretion only if
the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. at 343 (internal
quotation marks omitted).
Assuming without deciding that the district court
committed a clear or obvious error in finding that a sufficient
factual basis supported Williams’ guilty plea, see United
States v. Olano, 507 U.S. 725, 734 (1993) (explaining that
“plain” error is “synonymous with clear or . . . obvious” error
(internal quotation marks omitted)), Williams still fails to
establish plain error because he fails to show that the error
affected his substantial rights. In the guilty plea context, a
defendant meets this burden by showing that, but for the error,
he would not have entered his guilty plea. Massenburg, 564 F.3d
at 343. Williams, however, does not suggest that he would not
have pled guilty but for the district court’s error, and the
record does not independently support such a conclusion.
Because Williams cannot show that his substantial
rights were affected, he cannot show plain error. Accordingly,
we affirm his conviction. 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
3