UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 03-4668

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOSEPH LEVIN SEABROOKE,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Charleston. David C. Norton, District Judge.

(CR-02-411)

Submitted: June 9, 2004 Decided: July 6, 2004

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

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Andrew D. Grimes, LAW OFFICE OF ANDREW D. GRIMES, Summerville,

South Carolina, for Appellant. J. Strom Thurmond, Jr., United

States Attorney, Mary Gordon Baker, Assistant United States

Attorney, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Joseph Levin Seabrooke appeals his conviction and

sentence to 144 months in prison following his guilty plea to using

a minor to engage in sexually explicit conduct for production of

visual depictions of such conduct in violation of 18 U.S.C.

§ 2251(a) (2000). Seabrooke’s attorney has filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), asserting, in his

opinion, there are no meritorious legal issues but arguing the

district court committed plain error under Fed. R. Crim. P. 11 when

it failed to advise Seabrooke of its authority to order

restitution. Seabrooke has been informed of his right to file a

pro se supplemental brief but has not done so. Because we conclude

that any error by the district court did not affect Seabrooke’s

substantial rights, we affirm.

Since Seabrooke did not object during the district

court’s plea colloquy or seek to withdraw his plea in the district

court, this Court’s review is for plain error. See United

States v. Vonn, 535 U.S. 55, 59 (2002). Consequently, Seabrooke

must show: (1) error; (2) that was plain; (3) that affected his

substantial rights; and (4) this Court should exercise its

discretion to notice the error. See United States v. Olano, 507

U.S. 725, 732 (1993). To establish that his substantial rights

were affected, Seabrooke must demonstrate that absent the error, he

would not have entered his guilty plea. See United States v.
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Martinez, 277 F.3d 517, 532 (4th Cir.), cert. denied, 537 U.S. 899

(2002). We may consider the entire record when determining the

effect of any error on Seabrooke’s substantial rights. See Vonn,

535 U.S. at 74-75.

Although Seabrooke’s plea agreement put him on notice

that the district court might order restitution, by requiring his

immediate payment of any court-imposed monetary penalties

specifically including restitution, the district court did not

comply with the requirement of Fed. R. Crim. P. 11(b)(1)(K) that it

advise Seabrooke prior to accepting his guilty plea of its

authority to order restitution. The district court did, however,

advise Seabrooke that he faced a maximum possible fine of $250,000.

Moreover, the district court did not order Seabrooke to pay any

restitution, fine, or other monetary penalty, other than the onehundred dollar special assessment. Finally, Seabrooke’s guilty

plea effected dismissal of two other counts charged in the

indictment carrying significant additional penalties. Under these

circumstances, we find that Seabrooke has failed to demonstrate his

substantial rights were affected by the district court’s failure to

inform him of its authority to order restitution. See Martinez,

277 F.3d at 532-33; United States v. Fentress, 792 F.2d 461, 465-66

(4th Cir. 1986).

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for
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appeal. We therefore affirm Seabrooke’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