                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-4286


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHARLES F. WADDELL,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh, Chief
District Judge. (3:13-cr-00032-GMG-JES-1)


Submitted:   March 24, 2015                 Decided:   May 22, 2015


Before KEENAN, DIAZ, and FLOYD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Nicholas J. Compton, Assistant Federal Public Defender, Kristen
M. Leddy, Research and Writing Specialist, Martinsburg, West
Virginia, for Appellant.     William J. Ihlenfeld, II, United
States Attorney, Tara Tighe, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Charles F. Waddell pled guilty, without the benefit of a

written plea agreement, to failing to update his sex offender

registration, in violation of 18 U.S.C. § 2250(a) (2012).                                    At

the     Federal   Rule     of     Criminal       Procedure           11      hearing,     the

magistrate judge advised Waddell that he faced a maximum term of

supervised     release    of     three    years,       when     in    fact      he   faced    a

statutory maximum term of life.                See 18 U.S.C. § 3583(k) (2012).

The     magistrate     judge     also    did     not      advise        Waddell      of   the

consequences      of    violating       supervised        release.            The    district

court sentenced Waddell to 30 months’ imprisonment and 40 years’

supervised release.

      On    appeal,     counsel    initially       filed        a    brief     pursuant      to

Anders v. California, 386 U.S. 738 (1967), challenging Waddell’s

conviction and sentence.            After conducting our review pursuant

to Anders, we sought supplemental briefing to address whether

the     magistrate     judge     plainly       erred      by:         (1)     inaccurately

advising Waddell of the maximum term of supervised release; and

(2) failing to explain the consequences of violating supervised

release.      Although we conclude that the issues raised in the

Anders brief      are    without    merit,      we     find      that     the      magistrate

judge      committed    reversible       error       at    the       Rule     11     hearing.

Accordingly,      we    vacate     Waddell’s       conviction           and     remand    for

further proceedings.

                                           2
      Because     Waddell      did   not     move       in   the    district       court   to

withdraw his guilty plea, we review the Rule 11 hearing for

plain error.       United States v. Martinez, 277 F.3d 517, 525 (4th

Cir. 2002).       To establish plain error, Waddell must demonstrate

that (1) the district court committed an error; (2) the error

was plain; and (3) the error affected his substantial rights.

Henderson v. United States, 133 S. Ct. 1121, 1126 (2013).                                  In

the   guilty     plea     context,      a    defendant          meets   his    burden      of

demonstrating that an error affected his substantial rights by

showing a reasonable probability that he would not have pled

guilty     but    for   the     Rule    11       omission.          United     States      v.

Massenburg, 564 F.3d 337, 343 (4th Cir. 2009).                          The correction

of such an error lies within our discretion, which we exercise

only if the error “seriously affects the fairness, integrity or

public reputation of judicial proceedings.”                         Henderson, 133 S.

Ct. at 1127 (internal quotation marks and brackets omitted).

      The parties agree that the magistrate judge’s inaccurate

statement regarding the maximum term of supervised release and

failure    to    advise    Waddell      of       the    consequences      of       violating

supervised       release    qualify         as    plain      errors.         The    parties

dispute,     however,         whether       the        errors      affected        Waddell’s

substantial rights and whether we should exercise our discretion

to correct the errors.           After reviewing the record, we conclude

that there is a reasonable probability that Waddell would not

                                             3
have pled guilty had the magistrate judge accurately advised him

of   the    statutory      maximum    term          of   supervised      release   and   the

consequences of violating supervised release.                            We also exercise

our discretion to correct the errors.

      We are particularly troubled by the vast disparity between

the 3-year term of supervised release Waddell was advised he

could receive and the 40-year term the court actually imposed.

See United States v. Rivera-Maldonado, 560 F.3d 16, 21 (1st Cir.

2009) (observing that there is a “dramatic difference between a

three      year   period     of    supervised            release   and    a   lifetime   of

supervised        release”    and         vacating        judgment       on   plain   error

review).          Moreover,       there    is       no   evidence     that    Waddell    was

otherwise aware, before or during the Rule 11 hearing, of the

consequences of violating supervised release or that the court

could impose a lifetime term of supervised release.                                Finally,

Waddell     expressed      displeasure          and      frustration     with   government

oversight during his allocution, suggesting that Waddell might

very well have decided to plead not guilty and take his chances

at trial had the magistrate judge advised him that he could be

under close supervision for the rest of his life.

      We agree with the Government that the fact that Waddell did

not move to withdraw his plea or object in any other form when

he later discovered that he was misadvised of the maximum term

of supervised release at the Rule 11 hearing serves as some

                                                4
evidence that he would have pled guilty even if the magistrate

judge had fully complied with Rule 11.      See Massenburg, 564 F.3d

at 343-44.   On balance, however, we conclude that the magistrate

judge’s   errors   affected   Waddell’s   substantial   rights.     We

therefore vacate Waddell’s conviction and remand the case to the

district court so that Waddell may plead with the “ability to

evaluate with eyes open the direct attendant risks of accepting

criminal responsibility.” ∗    United States v. Thorne, 153 F.3d

130, 133 (4th Cir. 1998) (internal quotation marks omitted).

     In accordance with Anders, we have reviewed the record in

this case and have found no other meritorious issues.             This

court requires that counsel inform Waddell in writing of his

right to petition the Supreme Court of the United States for

further review.    If Waddell 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


     ∗
       Because we vacate Waddell’s conviction, we do not address
his sentence.      We note, however, that after we ordered
supplemental briefing in this case, we held, in accordance with
a recent clarifying amendment to the Sentencing Guidelines, that
“failing to register as a sex offender under [the Sex Offender
Registration and Notification Act] is not a ‘sex offense’ for
the purposes of the Guidelines.” United States v. Collins, 773
F.3d 25, 32 (4th Cir. 2014); see U.S. Sentencing Guidelines
Manual § 5D1.2 cmt. n.1 (2014). Although the amendment did not
alter the statutory penalties, the Guidelines recommendation for
Waddell’s term of supervised release is now five years.
Collins, 773 F.3d at 32; see USSG § 5D1.2 cmt. n.6.



                                  5
representation.      Counsel’s motion must state that a copy thereof

was served on Waddell.        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.

                                                      VACATED AND REMANDED




                                     6
