                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4389


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KEITH EDWARD FRAZIER,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Fox, Senior
District Judge. (4:11-cr-00113-F-1)


Submitted:   April 29, 2014                 Decided:   May 28, 2014


Before DIAZ and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Keith Edward Frazier, Appellant Pro Se. Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               A federal grand jury indicted Keith Edward Frazier on

one count of Hobbs Act robbery, and aiding and abetting, 18

U.S.C. §§ 1951, 2 (2012) (“Count One”); one count of armed bank

robbery, and aiding and abetting, 18 U.S.C. §§ 2113(a), (d), 2

(2012) (“Count Three”); and two counts of using or carrying a

firearm       during    and    in    relation       to    a    crime    of    violence,           and

aiding       and    abetting,        18   U.S.C.         §§ 924(c)(1)(A),           2       (2012)

(“Counts      Two     and    Four”).      Without         a    plea    agreement,           Frazier

pleaded guilty to Counts Three and Four. 1                             The district court

sentenced       him    to     sixty-four        months         on     Count   Three         and     a

consecutive         eighty-four        months       on    Count       Four,   for       a    total

sentence of 148 months’ imprisonment.

               On appeal, 2 Frazier contends that his guilty plea to

the § 924(c) offense was not knowing and voluntary because the

district       court        failed   to    correctly           advise     him    about            the

mandatory minimum sentence he faced.                            Furthermore, he argues

that the district court improperly imposed an enhanced sentence

under       § 924(c)(1)(A)(ii).           For       the       reasons    that   follow,            we




        1
       Frazier proceeded to trial on Counts One and Two and the
jury acquitted him on both counts.
        2
            Frazier has elected to proceed pro se on appeal.



                                                2
affirm Frazier’s convictions but vacate the sentence and remand

for resentencing on Count Four.

               Rule 11 of the Federal Rules of Criminal Procedure

requires that, prior to accepting a guilty plea, a trial court,

through colloquy with the defendant, must determine that the

defendant’s guilty plea is knowing and voluntary.                      United States

v. Vonn, 535 U.S. 55, 58 (2002).                Because Frazier is asserting

for the first time on appeal that the district court improperly

advised    him    regarding     the    mandatory      minimum       penalty    for   his

§ 924(c)    conviction,        our   review    is   for     plain    error.       United

States v. Massenburg, 564 F.3d 337, 342-43 (4th Cir. 2009); see

also United States v. Mescual-Cruz, 387 F.3d 1, 6-7 (1st Cir.

2004) (reviewing claim not raised in motion to withdraw before

district court for plain error).

               To establish plain error, Frazier “must show: (1) an

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

affects substantial rights.”               Massenburg, 564 F.3d at 342-43.

“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    and

citations omitted).

               Before accepting a guilty plea, a district court is

required under Rule 11(b)(1)(I) to ensure that the defendant

                                           3
understands any applicable mandatory minimum penalty.                  Fed. R.

Crim. P. 11(b)(1)(I).          To satisfy this obligation, the court

must “clearly advise” the defendant of the applicable minimum

penalty.      United States v. Good, 25 F.3d 218, 223 (4th Cir.

1994).

             Prior to accepting Frazier’s guilty plea, the district

court advised Frazier about the minimum and maximum sentences he

faced on each count in the indictment, including Counts Two and

Four--the § 924(c) offenses.        The court informed Frazier that he

faced a mandatory minimum sentence of twenty-five years on Count

Four.    Although this was the maximum mandatory minimum exposure

Frazier faced on Count Four if he had also been convicted on

Count Two, see 18 U.S.C. § 924(c)(1)(C)(i) (twenty-five year

mandatory           minimum         sentence             for         subsequent

§   924(c)   convictions),     Frazier’s   mandatory      minimum    sentencing

exposure     on     Count   Four   was     as    little    as   five     years’

imprisonment, see 18 U.S.C. § 924(c)(1)(A)(i) (establishing five

year    mandatory    minimum   sentence    for   first    § 924(c)    violation

without aggravating factors).

             We assume without deciding that Rule 11 requires a

district court to alert a defendant as to all possible mandatory

minimum sentences and that Frazier therefore can meet his burden

with respect to the first two requirements of the plain error

standard.     Cf. United States v. Goins, 51 F.3d 400, 404 (4th

                                      4
Cir. 1995) (rejecting, in dicta, the government’s argument that

“enumerating      all     possible     minimum          sentences”        would       impose    an

“onerous” burden on the district court).                       But Frazier still must

show     that     the        error    affected           his      substantial              rights.

Specifically, in this context, he must demonstrate that he would

not have pleaded guilty but for the error.                               United States v.

Martinez, 277 F.3d 517, 532 (4th Cir. 2002).                                 Frazier has not

met his burden.

               Frazier    filed      three    motions        to    withdraw          his    guilty

plea and       again     challenged     his       guilty     plea       at    the    sentencing

hearing.       But Frazier never raised the Rule 11(b)(1)(I) error in

the district court.            Frazier pleaded guilty to Count Four when

he was under the impression that he faced at least twenty-five

years in prison for this offense.                    He cannot now credibly assert

that he would not have pleaded guilty had he been informed that

his sentencing exposure on Count Four was in fact as low as five

years.     Accordingly, we conclude that Frazier has not met his

burden    of    showing      that    any     error      in   advising          him   about     his

mandatory minimum sentencing exposure affected his substantial

rights.    We therefore reject his challenge to his guilty plea.

               Next,     Frazier       argues        that         the        district       court

improperly sentenced him to seven years’ imprisonment on Count

Four   based     on    its    erroneous       determination             that    a    seven-year

mandatory       minimum       applied.             We     review         a     sentence        for

                                              5
reasonableness,        applying      “a     deferential       abuse-of-discretion

standard.”     Gall v. United States, 552 U.S. 38, 41 (2007).                            The

court   must     “ensure      that    the       district     court       committed        no

significant procedural error,” including improper calculation of

the   Guidelines      range,    insufficient         consideration           of    the    18

U.S.C. § 3553(a) (2012) factors, and inadequate explanation for

the chosen sentence.          Id. at 51; see also United States v. Lynn,

592 F.3d 572, 575 (4th Cir. 2010).                     In assessing Guidelines

calculations, we review factual findings for clear error, legal

conclusions de novo, and unpreserved arguments for plain error.

United States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012).

           Here,       the    district      court     adopted          the    sentencing

calculations     in    the     presentence        report.         Citing      18    U.S.C.

§ 924(c)(1)(A)(ii), the probation officer concluded that Frazier

faced a mandatory minimum sentence of seven years on Count Four,

consecutive    to     the    sentence     imposed     on    Count      Three.        Thus,

pursuant to U.S. Sentencing Guidelines Manual § 2K2.4(b) (2012),

the court sentenced Frazier to eighty-four months (seven years)

on Count Four.         See USSG § 2K2.4(b) (where the defendant is

convicted of a § 924(c) offense, the Guidelines sentence is the

statutory mandatory minimum).

           The      minimum    statutory         penalty    for    a    § 924(c)(1)(A)

offense,     without    enhancements,           is   five    years.          18    U.S.C.

§ 924(c)(1)(A)(i).             Section          924(c)(1)(A)(ii)         provides         an

                                            6
enhanced penalty when the firearm is brandished.                      Brandishing,

however, is an element of the offense; accordingly, it must be

admitted by the defendant or proven beyond a reasonable doubt in

order       to   increase      a   defendant’s    mandatory   minimum    sentence.

Alleyne v. United States, 133 S. Ct. 2151, 2155, 2163-64 (2013)

(holding that any fact that increases the statutory mandatory

minimum is an element of the offense and must be submitted to

the jury and found beyond a reasonable doubt); United States v.

Strayhorn, 743 F.3d 917, 926 (4th Cir. 2014) (applying Alleyne

to          sentencing         enhancement        for      brandishing       under

§ 924(c)(1)(A)(ii)).               Frazier was not charged with, nor did he

admit to, brandishing.               We therefore conclude that the district

court plainly erred in imposing an enhanced penalty on Frazier

pursuant to § 924(c)(1)(A)(ii). 3

                 For   these   reasons,    we    vacate   Frazier’s   sentence   on

Count Four and remand for resentencing on that count in light of

Alleyne and Strayhorn.               We affirm the criminal judgment in all

other respects.          We dispense with oral argument because thefacts

and legal contentions are adequately presented in the materials

        3
       Although the Supreme Court decided Alleyne after Frazier
was sentenced, the rule it established nevertheless applies to
this case.   See Griffith v. Kentucky, 479 U.S. 314, 328 (1987)
(“[A] new rule for the conduct of criminal prosecutions is to be
applied retroactively to all cases, state or federal, pending on
direct review or not yet final, with no exception for cases in
which the new rule constitutes a ‘clear break’ with the past.”).



                                           7
before   this   court   and   argument   would   not   aid   the   decisional

process.

                                                         AFFIRMED IN PART,
                                                          VACATED IN PART,
                                                              AND REMANDED




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