UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4630

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

OSCAR SILVA MARTINEZ,

Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. N. Carlton Tilley, 

Jr., Senior District Judge. (1:15-cr-00083-NCT-3)

Submitted: July 28, 2016 Decided: August 10, 2016

Before WILKINSON, MOTZ, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jenna Turner Blue, BLUE STEPHENS & FELLERS, LLP, Raleigh, North 

Carolina, for Appellant. Ripley Rand, United States Attorney, 

Randall S. Galyon, Assistant United States Attorney, Elissa 

Hachmeister, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, 

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Oscar Silva Martinez appeals his conviction, pursuant to a 

guilty plea, for conspiracy to distribute cocaine hydrochloride, 

in violation of 21 U.S.C. §§ 841(b)(1)(C), 846 (2012). On 

appeal, Martinez argues that the district court erred in 

accepting his guilty plea without finding that the plea was 

supported by a sufficient factual basis. We affirm.

Because Martinez did not seek to withdraw his guilty plea, 

“any error in the Rule 11 hearing is reviewed only for plain 

error.” United States v. Williams, 811 F.3d 621, 622 (4th Cir. 

2016). “In order to satisfy the plain error standard [a 

defendant] must show: (1) an error was made; (2) the error is 

plain; and (3) the error affects [his] substantial rights.” 

United States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 

2009). In the context of a Rule 11 appeal, a defendant’s 

substantial rights are affected when there is “a reasonable 

probability that, but for the error, he would not have entered 

the plea.” Id. at 343 (quoting United States v. Dominguez 

Benitez, 542 U.S. 74, 83 (2004)). 

Prior to “entering judgment on a guilty plea, the court 

must determine that there is a factual basis for the plea.” 

Fed. R. Crim. P. 11(b)(3). This rule is “intended to ensure 

that the court make clear exactly what a defendant admits to, 

and whether those admissions are factually sufficient to 
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constitute the alleged crime.” United States v. Mastrapa, 509 

F.3d 652, 659-60 (4th Cir. 2007) (internal quotation marks 

omitted). 

The district court failed to find that a sufficient factual 

basis supported Martinez’s guilty plea. The court withheld such 

a finding at the plea hearing, and failed to address the issue 

at Martinez’s sentencing. Thus, the court erred in failing to 

find that Martinez’s guilty plea was supported by an independent 

basis in fact containing each of the elements of the offenses, 

and that error was plain. 

However, we conclude that the error did not affect 

Martinez’s substantial rights. Although Martinez initially 

denied agreeing to purchase five kilograms of cocaine, the facts 

set forth in the presentence report (PSR), to which Martinez 

withdrew his objection, show that he asked a coconspirator to 

purchase five kilograms of cocaine from a confidential informant 

on his behalf. Moreover, the PSR stated that Martinez would 

ultimately approve any drug purchase, demonstrating that 

Martinez was deeply involved in, and critical to, the 

conspiracy. These facts establish that Martinez knew of the 

drug conspiracy and actively participated in that conspiracy.* 

 * To convict Martinez for conspiracy, the Government would 

have to prove: “(1) an agreement between two or more persons to 

engage in conduct that violates a federal drug law; (2) the 

(Continued)
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Thus, the district court could have found that a factual basis 

existed from the facts summarized in the PSR. See United States 

v. Martinez, 277 F.3d 517, 531-32 (4th Cir. 2002) (holding 

district court may consider anything that appears on record, 

including facts in PSR, in finding factual basis).

Furthermore, Martinez’s admissions during the guilty plea 

colloquy were sufficient to support his plea. Although Martinez 

denied making a deal with the confidential informant, he 

admitted that he was present at, and participated in, the 

meeting between a coconspirator and the confidential informant, 

and that he agreed to assist his coconspirator in procuring 

and/or distributing cocaine. These admissions were sufficient 

to provide a factual basis for Martinez’s guilty plea. Because 

there was a sufficient factual basis to support Martinez’s plea, 

his substantial rights were not affected by the error. 

Massenburg, 564 F.3d at 343. 

Accordingly, we affirm Martinez’s conviction. We dispense 

with oral argument because the facts and legal contentions are 

 

defendant’s knowledge of the conspiracy; and (3) the defendant’s 

knowing and voluntary participation in the conspiracy.” United 

States v. Green, 599 F.3d 360, 367 (4th Cir. 2010).
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adequately presented in the materials before this court and 

argument would not aid the decisional process.

AFFIRMED