UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-5176

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JUSTIN JAMIL MATHIS,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Greenville. Henry M. Herlong, Jr., District

Judge. (6:06-cr-00643)

Submitted: April 18, 2007 Decided: May 31, 2007

Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit

Judge.

Affirmed by unpublished per curiam opinion.

James Barlow Loggins, Assistant Federal Public Defender,

Greenville, South Carolina, for Appellant. Elizabeth Jean Howard,

OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina,

for Appellee.

Unpublished opinions are not binding precedent in this circuit.
1

Mathis qualified as a career offender. 

2

U.S. Sentencing Guidelines Manual (2005).

3

Anders v. California, 386 U.S. 738 (1967).

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PER CURIAM:

Justin Jamil Mathis pleaded guilty to one count of bank

robbery, in violation of 18 U.S.C. § 2113(a) (2000). At

sentencing, Mathis and the Government agreed that a total offense

level of twenty-nine applied and this offense level, combined with

a criminal history category VI,1 yielded a sentencing range of 151

to 188 months of imprisonment under the Sentencing Guidelines.2

The district court sentenced Mathis to 151 months of imprisonment.

On appeal, counsel filed an Anders3 brief, concluding that there

are no meritorious issues for appeal, but raising the question of

whether the district court complied with the requirements of Fed.

R. Crim. P. 11. Mathis was advised of his right to file a pro se

supplemental brief, but he has not done so.

Our review of the plea hearing transcript reveals that,

while the district court ensured that Mathis understood the charges

against him and the maximum and minimum penalties, and ascertained

that Mathis’s plea was voluntary, the district court failed to

inform Mathis that he could persist in his initial plea of not

guilty. See Fed. R. Crim. P. 11(b)(1)(B). And although the court

advised Mathis that he was forgoing his right to a jury trial by

pleading guilty and that if he went to trial he would have the
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rights to the assistance of counsel, to testify and to present

evidence, as well as the right against compelled

self-incrimination, the court failed to specifically inform him

that he would also have the right to confront and cross-examine

witnesses against him, as required by Fed. R. Crim. P. 11(b)(1)(E).

Because Mathis did not move in the district court to

withdraw his guilty plea, any error in the Rule 11 hearing is

reviewed for plain error. United States v. Martinez, 277 F.3d 517,

525 (4th Cir. 2002). To demonstrate plain error, Mathis must

establish that error occurred, that it was plain, and that it

affected his substantial rights. United States v. Hughes, 401 F.3d

540, 547-48 (4th Cir. 2005). To establish that a district court’s

non-compliance with Rule 11 affected substantial rights, a

defendant bears the burden of showing a reasonable probability

that, but for the error, he would not have entered the plea.

United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).

We conclude that here, because the district court

reviewed all of the other trial rights enumerated in Rule 11, and

also addressed other trial rights, review of which is not mandated

by Rule 11, the court’s failure to specifically discuss the right

to confront and cross-examine witnesses in the plea colloquy did

not affect Mathis’s substantial rights. The record provides no

basis to believe that Mathis would not have pled guilty but for

this omission. See Martinez, 277 F.3d at 532; see also United
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States v. Stead, 746 F.2d 355, 356-57 (6th Cir. 1984) (failure to

advise a defendant of his right against self-incrimination and his

right to confront and cross-examine witnesses did not require his

guilty plea to be set aside); see also United States v.

Gomez-Cuevas, 917 F.2d 1521, 1525-26 (10th Cir. 1990) (failure to

advise the defendant of his right to confront and cross-examine

witnesses was harmless error where the guilty plea was voluntary

and the defendant understood the charges against him). We also

conclude that the district court’s failure to specifically counsel

Mathis that he could persist in his initial plea of not guilty did

not constitute plain error, as the very purpose of the plea hearing

was to permit Mathis to change his plea from not guilty to guilty.

See United States v. Knox, 287 F.3d 667, 670 (7th Cir. 2002). 

In accordance with Anders, we have thoroughly reviewed

the entire record in this case and have found no meritorious issues

for appeal. We therefore affirm Mathis’s conviction and sentence.

This court requires that counsel inform his client, in writing, of

his right to petition the Supreme Court of the United States for

further review. If the client 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 the client. We dispense with oral argument because

the facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the

decisional process. 

AFFIRMED