*

Judge Luttig was a member of the original panel but did not

participate in this decision. This opinion is filed by quorum of

the panel pursuant to 28 U.S.C. § 46(d).

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4627

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FRANCISCO DE LA CRUZ-ORTIZ, a/k/a Francisco

Lopez, a/k/a Manuel Francisco De La CruzOrtiz,

Defendant - Appellant.

Appeal from the United States District Court for the District of

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

Judge. (CR-04-3)

Submitted: April 26, 2006 Decided: June 8, 2006

Before WILKINSON, LUTTIG,* and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

G. Wells Dickson, Jr., Charleston, South Carolina, for Appellant.

Maxwell B. Cauthen, III, OFFICE OF THE UNITED STATES ATTORNEY,

Greenville, South Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Francisco De La Cruz-Ortiz appeals the district court’s

judgment entered pursuant to his guilty plea for illegal reentry

after deportation subsequent to a conviction for an aggravated

felony in violation of 8 U.S.C. §§ 1326(a), (b)(2) (2000). He

received a forty-six month prison sentence. Cruz-Ortiz’s attorney

has filed a brief in accordance with Anders v. California, 386 U.S.

738 (1967), certifying there are no meritorious issues for appeal.

Cruz-Ortiz has filed a pro se supplemental brief claiming the

district court did not fully comply with the requirements of Fed.

R. Crim. P. 11 and that the district court erred in imposing its

sentence. Finding no reversible error, we affirm.

Cruz-Ortiz claims that the district court did not fully

comply with the requirements of Fed. R. Crim. P. 11 during his

guilty plea hearing. Because Cruz-Ortiz did not object to or seek

to withdraw his guilty plea on the basis of this omission, our

review is for plain error. United States v. Martinez, 277 F.3d

517, 527 (4th Cir. 2002). Under plain error review, this court may

notice an error that was not preserved by timely objection only if

the defendant can demonstrate that: (1) there was error; (2) it

was plain; and (3) the error affected the defendant’s substantial

rights. United States v. Olano, 507 U.S. 725, 732-34 (1993). Even

when these three conditions are satisfied, this court may exercise

its discretion to notice the error only if the error “seriously
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affect[s] the fairness, integrity or public reputation of judicial

proceedings.” Id. at 736 (internal quotation marks omitted).

The district court conducted a thorough Rule 11 colloquy

except for one question. In response to the district court’s

question of whether anyone threatened, forced, or coerced him into

pleading guilty, Cruz-Ortiz responded, “Yes, sir.” Neither the

district court nor counsel pursued the matter any further at the

plea hearing or at sentencing. Here, there was error, because the

district court failed to conform to Rule 11 in its entirety by not

pursuing Cruz-Ortiz’s affirmative answer. This error was plain

because it was “clear” or “obvious.” Olano, 507 U.S. at 734. 

However, this error did not affect Cruz-Ortiz’s

substantial rights. An error is substantial if it was so

prejudicial as to affect the outcome of the proceedings. Id.;

Martinez, 277 F.3d at 532. In the guilty plea context, to prove

that an error is substantial, the defendant must show that, but for

the error, he would not have pled guilty. Id. Cruz-Ortiz does not

provide any explanation of how he was coerced to plead guilty. At

every other opportunity, including the district court’s next

question, Cruz-Ortiz readily admitted his guilt. Cruz-Ortiz was

well aware of his rights, and, given that he does not allege that

but for the Rule 11 error, he would not have pled guilty, that

error did not affect his substantial rights. Therefore, the

district court committed no reversible error.
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Cruz-Ortiz claims that the district court erred under

United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 764-68

(2005), when it enhanced his sentence sixteen levels using a prior

conviction that was not charged in his indictment. However, the

government need not allege in its indictment and need not prove

beyond reasonable doubt that a defendant had prior convictions for

a district court to use those convictions for purposes of enhancing

a sentence. Almendarez-Torres v. United States, 523 U.S. 224, 245

(1998). U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A) (2005)

applies a sixteen level enhancement if the defendant was previously

deported after, among other things, a “crime of violence,” defined

in the commentary to include an “aggravated assault.” USSG

§ 2L1.2, comment (n.1(B)(iii)). In 2001, Cruz-Ortiz was convicted

in South Carolina of “Assault and Battery of a High and Aggravated

Nature.” As the definition of Cruz-Ortiz’s prior crime inherently

identified the offense as a crime of violence, the district court

did not violate Cruz-Ortiz’s Sixth Amendment rights. See

Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 1262

(2005); United States v. Washington, 404 F.3d 834, 840-41 (4th Cir.

2005).

Cruz-Ortiz finally argues that the district court’s

treatment of the sentencing guidelines as mandatory requires

resentencing. Although the district court followed the law in

effect at the time of Cruz-Ortiz’s sentencing, Cruz-Ortiz is
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correct that subsequent legal developments make it clear that the

district court erred in treating the guidelines as mandatory, see

United States v. Hughes, 401 F.3d 540, 547-48 (4th Cir. 2005).

Nevertheless, we have held that in the plain error context, the

error of sentencing under the mandatory guidelines regime does not

warrant a presumption of prejudice, nor is it a structural error.

United States v. White, 405 F.3d 208, 224 (4th Cir. 2005). Nothing

in the record suggests the error in applying the guidelines as

mandatory affected the court’s ultimate determination of CruzOrtiz’s sentence. Accordingly, Cruz-Ortiz cannot satisfy the

prejudice requirement of the plain error standard.

Pursuant to Anders, we have examined the entire record

and find no meritorious issues for appeal. Accordingly, we affirm

Cruz-Ortiz’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 materials before the court and

argument would not aid the decisional process.

AFFIRMED