UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4236
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROBERT S. LEBEN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Mary G. Lewis, District Judge.
(3:14-cr-00858-MGL-1)
Submitted: September 29, 2016 Decided: October 3, 2016
Before SHEDD, KEENAN, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David B. Betts, Columbia, South Carolina, for Appellant. Winston
David Holliday, Jr., Assistant United States Attorney, Columbia,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert S. Leben pled guilty, pursuant to a written plea
agreement, to conspiracy to defraud, in violation of 18 U.S.C.
§ 1343 (2012). The district court sentenced Leben to 40 months’
imprisonment, a sentence within the applicable Sentencing
Guidelines range. Counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious grounds for appeal but questioning whether
the district court substantially complied with Fed. R. Crim. P.
11 in accepting Leben’s guilty plea. Although notified of his
right to do so, Leben has not filed a pro se brief. After
careful review, we affirm.
Prior to accepting a guilty plea, a court must conduct a
plea colloquy in which it informs the defendant of, and
determines that the defendant understands, the nature of the
charge to which he is pleading guilty, the maximum possible
penalty he faces, and the various rights he is relinquishing by
pleading guilty. Fed. R. Crim. P. 11(b)(1); United States v.
DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). The district court
also must ensure that the defendant’s plea is voluntary,
supported by a sufficient factual basis, and not the result of
force, threats, or promises not contained in the plea agreement.
Fed. R. Crim. P. 11(b)(2)-(3); DeFusco, 949 F.2d at 119-20.
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Because Leben did not move to withdraw his guilty plea in
the district court or otherwise preserve any allegation of Rule
11 error, we review the plea colloquy for plain error. United
States v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014). “To prevail
on a claim of plain error, [Leben] must demonstrate not only
that the district court plainly erred, but also that this error
affected his substantial rights.” Id. at 816. In the guilty
plea context, a defendant establishes that an error affected his
substantial rights if he demonstrates a reasonable probability
that he would not have pled guilty but for the error. Id.
The record reveals that the district court conducted a
thorough plea colloquy with Leben. The court erred only in
failing to explicitly state that it accepted the factual basis
presented by the Government at the Rule 11 hearing. At the Rule
11 hearing, Leben agreed that the factual basis as presented by
the Government was correct. Further, neither Leben nor the
record suggest that, but for the court’s failure to expressly
accept the factual basis, he would not have pled guilty.
Accordingly, we conclude that the district court did not
commit reversible plain error in accepting Leben’s guilty plea.
In accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal. We
therefore affirm Leben’s conviction and sentence. This court
requires that counsel inform Leben, in writing, of the right to
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petition the Supreme Court of the United States for further
review. If Leben 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 Leben.
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
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