UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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