                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 12-4732


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

          v.

ISAAC SPENCER,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. James C. Fox,
Senior District Judge. (2:11-cr-00046-F-1)


Submitted:   April 22, 2013                 Decided:   April 24, 2013


Before KING, DIAZ, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Terry F. Rose, Smithfield, North Carolina, for Appellant.
Thomas   G.  Walker,   United   States   Attorney,   Jennifer   P.
May-Parker,   Kristine   L.   Fritz,   Assistant   United   States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Isaac       Spencer       appeals      from     his        conviction     for

distribution of cocaine within one thousand feet of a school or

playground.      On appeal, he asserts that the district court erred

in finding that a sufficient factual basis supported his plea.

Specifically, he asserts that the Fed. R. Crim. P. 11 hearing

failed to establish a factual basis that the drug transaction

occurred within one thousand feet of a school or playground.                          We

affirm.

            Because Spencer did not move in the district court to

withdraw his guilty plea, our review is for plain error. *                        United

States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002).                                 To

establish      plain    error,    Spencer       “must   show:     (1)    an   error   was

made;    (2)    the    error     is    plain;     and     (3)   the     error    affects

substantial rights.”           United States v. Massenburg, 564 F.3d 337,

342-43 (4th Cir. 2009).           “The decision to correct the error lies

within our discretion, and we exercise that discretion only if

the error seriously affects the fairness, integrity or public

reputation      of     judicial       proceedings.”       Id.     at    343     (internal

quotation marks omitted).


     *
       The parties dispute the standard of review. However, we
made clear in United States v. Bradley, 455 F.3d 453, 461 (4th
Cir. 2006) that "all forfeited Rule 11 errors [are] subject to
plain error review."



                                            2
             Even   assuming     that    the     district      court    committed      a

clear   or   obvious    error    in    finding    that     a    sufficient     factual

basis   supported      Spencer’s      guilty   plea,     see     United      States   v.

Olano, 507 U.S. 725, 734 (1993) (explaining that “plain” error

is “synonymous with clear or . . . obvious” error (internal

quotation    marks     omitted)),       Spencer    still       fails    to    establish

plain error because he does not show that the error affected his

substantial rights.            In the guilty plea context, a defendant

meets this burden by showing that, but for the error, he would

not have entered his guilty plea. Massenburg, 564 F.3d at 343.

Spencer, however, does not suggest that he would not have pled

guilty but for the district court’s error, and the record does

not independently support such a conclusion.

             Because    Spencer       cannot     show    that     his     substantial

rights were affected, he cannot show plain error. Accordingly,

we affirm his conviction. 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




                                          3
