                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-5145


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

RAMIRO GOMEZ AGUILAR,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.        Richard L.
Voorhees, District Judge. (5:06-cr-00018-RLV-CH-1)


Submitted:    July 9, 2009                      Decided:   July 23, 2009


Before WILKINSON and      NIEMEYER,   Circuit   Judges,    and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Leslie C. Rawls, Charlotte, North Carolina, for Appellant.
Edward R. Ryan, Acting United States Attorney, Charlotte, North
Carolina, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Ramiro Gomez Aguilar pled guilty pursuant to a plea

agreement to one count of conspiracy to possess with the intent

to    distribute    five      kilograms         of    cocaine,   in     violation       of

21 U.S.C.    § § 841(b)(1)(A),         846       (2006).       The    district       court

sentenced     Aguilar    to    120    months’         imprisonment,      the    minimum

imprisonment      term   required     by     statute.         Aguilar       contends    on

appeal that, as a result of the magistrate judge’s error at the

Fed. R. Crim. P. 11 colloquy, * his guilty plea was not voluntary.

We affirm.

            Because Aguilar did not move in the district court to

withdraw    his    guilty     plea   on     the       basis   that    the    magistrate

judge’s error rendered his plea involuntary, his challenge is

reviewed for plain error.             See United States v. Martinez, 277

F.3d 517, 524-25 (4th Cir. 2002).                      To establish plain error,

Aguilar must show that: (1) an error was made; (2) the error is

plain; and (3) the error affects his substantial rights.                            United

States v. Olano, 507 U.S. 725, 732 (1993).                           Even if Aguilar

makes this showing, however, correction of the error lies within

our   discretion,    which     we    will       not   exercise   unless       the    error

“seriously affects the fairness, integrity or public reputation


      *
       Aguilar expressly consented to plead guilty before the
magistrate judge.



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of    judicial     proceedings.”            Id.       (internal         quotation         marks,

citations, and alteration omitted).

            Under Fed. R. Crim. P. 11(b)(1)(I), a district court

is    required,    before     accepting      a        defendant’s       guilty          plea,    to

advise     the    defendant        and    ensure           that   he        understands         any

applicable       mandatory     minimum       penalty.               Fed.      R.    Crim.        P.

11(b)(1)(I).         To    satisfy   its     obligation           under      the    Rule,       the

court    must    “clearly     advise”       the       defendant        of    the    applicable

minimum    penalty.         United       States       v.    Good,      25    F.3d       218,    223

(4th Cir. 1994).

             In this case, Aguilar was subject to a minimum term of

ten years’ imprisonment and a maximum term of life imprisonment.

See 21 U.S.C. § 841(b)(1)(A).                     At the Rule 11 colloquy, the

magistrate judge advised Aguilar that the “maximum penalty for

this offense is not less than ten years nor more than life

imprisonment.”        Aguilar claims that the magistrate judge failed

to    discharge     his     obligation      to        clearly       advise        him    of     the

applicable mandatory minimum penalty because this description of

the     applicable        prison    terms        is    confusing            and    inaccurate.

Assuming        without      deciding        that          the      magistrate           judge’s

description of the applicable minimum penalty was error that was

plain, Aguilar is not entitled to relief because the error did

not impact his substantial rights.                     See United States v. Goins,

51 F.3d 400, 402-03 (4th Cir. 1995).

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             An error impacts a defendant’s substantial rights if

it   is    so    prejudicial     as    to     affect   the      outcome    of    the

proceedings.      See Martinez, 277 F.3d at 532.             In the guilty plea

context,    a   defendant   meets      this   standard   by     showing   that    he

would not have pled guilty but for the Rule 11 error.                            Id.

After review of the record, we conclude that Aguilar fails to

make this showing.      Accordingly, we discern no plain error.                   We

therefore affirm the district court’s judgment.                        We dispense

with oral argument because the facts and legal contentions are

adequately      presented   in   the    materials      before    the    court    and

argument would not aid the decisional process.

                                                                          AFFIRMED




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