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No. 12-4895
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.
Henry M. Herlong, Jr., Senior
District Judge. (7:11-cr-00477-HMH-1)
Submitted:
Decided:
April 2, 2013
PER CURIAM:
Michael
Preston
McClain
appeals
his
conviction
and
was
counsel
sentenced
for
McClain
California,
386
meritorious
issues
district
to
court
120
months
filed
U.S.
738
for
properly
imprisonment.
brief
(1967),
appeal
pursuant
On
to
asserting
but
conducted
the
plea
Anders
there
questioning
appeal,
v.
are
no
whether
colloquy,
the
whether
to
accepting
guilty
plea,
We affirm.
a
trial
court,
The
district
court
also
must
Fed. R. Crim. P.
ensure
that
the
Crim.
P.
11(b)(2),
(3).
In
reviewing
the
Fed.
adequacy
of
the
trial
mandated
courts
decision
colloquy
with
as
the
to
how
best
defendant.
to
conduct
United
the
States
v.
525-26
(4th
Cir.
To
establish
plain
error,
[McClain] must show that an error occurred, that the error was
plain,
and
that
the
error
affected
his
substantial
rights.
United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007).
Even
if
McClain
satisfies
these
requirements,
we
retain
reputation
of
judicial
proceedings.
Id.
(internal
colloquy
McClain
argues
omitted
the
that
the
possible
district
penalties
courts
for
Rule
11
violation
of
years
under
18
U.S.C.
924(a)(2)
(2006),
rather
than
position at the time of the guilty plea that McClain was subject
to the ACCA such that, even if the district court had stated the
3
his
initial
appearance
in
the
district
court
and
by
the
penalty sheet filed with the indictment that the maximum penalty
in
the
absence
of
the
ACCA
designation
was
ten
years.
We
also
claims
that
the
Rule
11
colloquy
was
See
defendant
bears
the
burden
of
show[ing]
reasonable
probability that, but for the error, he would not have entered
the plea.
(2004).
We
conclude that McClain has failed to satisfy his burden and that
the
plea
was
knowing
and
voluntary
and
supported
by
an
20.
McClain next claims that trial counsel was ineffective
when
he
advised
McClain
that
he
4
was
subject
to
the
ACCA.
However,
the
record
does
not
conclusively
establish
any
See United
States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008) (providing
standard); United States v. Baldovinos, 434 F.3d 233, 239 (4th
Cir.
2006).
We
therefore
conclude
that
the
ineffective
Rather, to
claims
that
the
Government
made
denied
reasonable
antecedent,
his
right
bond.
to
valid,
due
process
counseled
non-jurisdictional
and
his
guilty
plea
defects
not
right
to
waives
a
all
logically
Tollett
Henderson,
411
U.S.
258,
267
(1973).
McClain
asserts
that
the
district
court
state court.
United
States v. Johnson, 643 F.3d 545, 551 (7th Cir. 2011) (internal
quotation marks omitted); see United States v. Grubbs, 585 F.3d
793, 798-99 (4th Cir. 2009) (holding that district court may
consider acquitted and uncharged conduct so long as it is proved
by
preponderance
of
evidence).
Our
review
of
the
record
was
unreasonable.
neither
See
Gall
procedurally
v.
United
nor
States,
552
substantively
U.S.
38,
51
representation.
contentions
this
court
are
adequately
and
argument
presented
would
not
in
aid
the
the
materials
decisional
process.
AFFIRMED