UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 96-4833

JACKIE ROBINSON, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, Chief District Judge.
(CR-96-32)

Submitted: September 30, 1997

Decided: November 5, 1997

Before WILKINS, WILLIAMS, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

William F. Nettles, IV, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. Alfred William Walker Bethea, Assis-
tant United States Attorney, Florence, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________
OPINION

PER CURIAM:

Jackie Robinson, Jr., pled guilty to possession with intent to dis-
tribute cocaine, in violation of 21 U.S.C. § 841(a)(1) (1994), and was
sentenced to 94 months imprisonment. At the sentencing hearing,
Robinson's counsel moved for a continuance so that Robinson could
file a motion to withdraw his guilty plea. The court subsequently con-
sidered and denied the motion to withdraw, treating it as one filed
before sentencing.

On appeal, Robinson's attorney has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), addressing whether the
district court conducted a proper plea hearing under Fed. R. Crim. P.
11, and whether the court erred by denying Robinson's motion to
withdraw his plea. Counsel asserts that there are no meritorious
grounds for appeal. Robinson was informed of his right to file a pro
se supplemental brief, and has filed a brief raising additional argu-
ments relating to his Rule 11 hearing and the court's denial of his
motion to withdraw his plea.

We accord great deference to the trial court's conduction of the
Rule 11 hearing, and evaluate Rule 11 violations under the harmless
error standard. See United States v. DeFusco, 949 F.2d 114, 116, 117
(4th Cir. 1991). We may vacate a conviction resulting from a guilty
plea only if the trial court's violation of Rule 11 affected a defen-
dant's substantial rights. Id. at 117. The court asks "whether the
defendant's knowledge and comprehension of the full and correct
information would have been likely to affect his willingness to plead
guilty." United States v. Goins, 51 F.3d 400, 402 (4th Cir. 1995)
(quoting United States v. Johnson, 1 F.3d 296, 302 (5th Cir. 1993) (en
banc)). In this case, the court discussed the nature and elements of the
charges, ensured that Robinson had consulted with and was satisfied
with counsel, understood the rights he forfeited by virtue of his plea,
and entered the plea freely and voluntarily. The court also ascertained
that there was a factual basis for the plea.

Robinson correctly argues in his informal brief, however, that the
court failed to personally inform him of the mandatory minimum sen-

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tence (of five years) he faced for his conviction under § 841(a), and
also erroneously told him that he faced a maximum supervised release
term of four years but then sentenced him to five years supervised
release. We have specifically held that Rule 11(c)(1) requires the dis-
trict court to inform the defendant of any mandatory minimum sen-
tence required by statute. See Goins, 51 F.3d at 402.

On the other hand, "[f]ailure to inform a defendant about applicable
mandatory minimums can be, but is not necessarily, a serious over-
sight. The inquiry is fact bound." United States v. Padilla, 23 F.3d
1220, 1222 (7th Cir. 1994). As we have alluded to, the ultimate ques-
tion is whether the error was harmful in the sense that it likely actu-
ally affected the decision to plead guilty. One example where the
failure to inform may be harmless is where the record reflects that the
defendant was actually aware of the information that the court failed
to impart. See Goins, 51 F.3d at 402-03. That is the situation in this
case, as the record reflects that during the Rule 11 hearing, the Assis-
tant United States Attorney stated the mandatory minimum sentence
Robinson faced in response to the court's inquiry regarding Robin-
son's sentencing range. When the court reiterated this information, it
omitted reference to the mandatory minimum, but Robinson was
nonetheless actually alerted to the existence of a five-year minimum
sentence.

Moreover, the sequence of events reflected by the record in this
case suggests that neither error committed at the Rule 11 hearing
likely affected Robinson's decision to plead guilty. The presentence
report was prepared in June 1996. The report explicitly discusses the
applicable mandatory minimum sentence, and the maximum term of
supervised release. Robinson filed his motion to withdraw his guilty
plea on August 29, 1996. As grounds for the motion, Robinson
asserted that he felt pressured to plead guilty because a co-defendant's
attorney advised him that all the co-defendants should either plead
guilty or go to trial together, and all four co-defendants were pleading
guilty. He also alleged that a co-defendant's attorney told him that he
had no chance of winning at trial because he was black. Despite being
alerted to the applicable sentence ranges over two months earlier,
Robinson did not allege in his motion that he had been misled about
his possible sentence, or that his misconception had anything to do
with his decision to plead guilty. In fact, even on appeal, Robinson

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does not allege that this error affected his decision to plead guilty, but
merely asserts that the error automatically invalidates his plea.
Accordingly, we find the errors committed by the district court in the
conduction of the Rule 11 hearing to be harmless.

Robinson next asserts that the district court erred by denying his
motion to withdraw his guilty plea. Under Fed. R. Crim. P. 32(d), a
court may grant a motion for withdrawal of a guilty plea made before
sentencing if the defendant presents a "fair and just reason" for with-
drawal. A fair and just reason is one which brings into question the
validity of his plea. See United States v. Hyde , ___ U.S. ___, 1997
WL 273691 (U.S. May 27, 1997) (No. 96-667). The district court
denied Robinson's motion after explicitly considering the factors we
found to be most relevant to the "fair and just reason" test in United
States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).

First, the court found the record devoid of evidence that Robin-
son's plea was not entered knowingly or voluntarily. We disagree
with Robinson's assertion that the fact that during the plea hearing
one co-defendant requested more time to think about his decision, and
to speak with his co-defendants, should have put the court on notice
that the pleas might not be voluntary, particularly since the court
granted the requested time, and all defendants subsequently pled
guilty. Next, while Robinson asserted that he was not guilty in his
motion, he provided no support for his claim. Hence, there is no merit
to Robinson's contention on appeal that the court should have ordered
an evidentiary hearing to explore the question of actual innocence.

The court also noted that Robinson filed his motion nearly three
months after entering his plea, and that he received close assistance
of counsel. Robinson acknowledged his satisfaction with counsel at
the plea hearing and in his motion. As the court properly found that
each of these factors weighed against granting the motion, we find
that it did not abuse its discretion by denying it. See United States v.
Sparks, 67 F.3d 1145, 1150, 1154 (4th Cir. 1995) (stating standard of
review and explaining relative importance of various Moore factors).

In accordance with the requirements of Anders , we have examined
the entire record and find no meritorious issues for appeal. Accord-
ingly, we affirm Robinson's conviction and sentence. This court

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requires that counsel inform his client, in writing, of his right to peti-
tion the Supreme Court of the United States for further review. If the
client 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 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 conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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