UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-5133

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LEONARDO ANTOINE BARBER,

Defendant - Appellant.

Appeal from the United States District Court for the District of

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

Judge. (7:06-cr-00147-HMH)

Submitted: March 21, 2007 Decided: April 30, 2007

Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Margaret A. Chamberlain, CHAMBERLAIN LAW FIRM, Greenville, South

Carolina, for Appellant. Regan Alexandra Pendleton, Assistant

United States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
1

U.S. Sentencing Guidelines Manual (2005).

2

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

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PER CURIAM:

Leonardo Antoine Barber pleaded guilty to one count of

conspiracy to possess with intent to distribute and to distribute

five kilograms or more of cocaine and fifty grams or more of

cocaine base, in violation of 21 U.S.C.A. §§ 846, 841(a)(1),

(b)(1)(A) (West 1999 & Supp. 2006). At sentencing, Barber and the

Government agreed that a total offense level of twenty-four applied

and this offense level, combined with Barber’s criminal history

category II, yielded a sentencing range of 60 to 71 months of

imprisonment under the Sentencing Guidelines.1 The district court

sentenced Barber to 62 months of imprisonment. On appeal, counsel

filed an Anders2 brief, questioning whether there was a proper

factual basis supporting Barber’s guilty plea, but concluding that

there are no meritorious issues for appeal. Barber 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

the district court ensured that Barber understood the charges

against him, the maximum and minimum penalties, and ascertained

that Barber’s plea was voluntary. With regard to the factual basis

for Barber’s plea, the Government’s attorney summarized the facts

underlying the charge and Barber agreed with the Government’s
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factual recitation. Our review of the plea hearing convinces us

that the factual basis was sufficient. See United States v. Carr,

271 F.3d 172, 179 & n.6 (4th Cir. 2001).

Although Barber’s counsel does not raise the point, we

note that the district court failed to inform Barber that he could

persist in his initial plea of not guilty. Fed. R. Crim. P.

11(b)(1)(B). And although the court advised Barber that he was

forgoing his right to a jury trial by pleading guilty, the court

did not enumerate the specific trial rights Barber was giving up,

such as the right to assistance of counsel at trial, the right to

testify and present evidence, the right to confront and

cross-examine witnesses, and the right against compelled

self-incrimination, as required by Fed. R. Crim. P. 11(b)(1)(E). 

 Because Barber 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, Barber 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).
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We conclude that the omissions in the plea colloquy did

not affect Barber’s substantial rights. See United 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). Barber’s plea

agreement addressed and identified his waiver of specific trial

rights. During the plea hearing, Barber acknowledged that he

thoroughly reviewed the plea agreement with his attorney and

understood all its provisions. Moreover, Barber was aware that he

could persist in his plea of not guilty, because the very purpose

of the plea hearing was to change his plea from not guilty to

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

2002). The record provides no basis to believe that Barber would

not have pled guilty had the district court been more exacting in

its conduct of the plea hearing. See Martinez, 277 F.3d at 532. 

 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 Barber’s conviction and sentence.

This court requires that counsel inform her 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,
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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