                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-5033


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KEVIN BERNARD SMITH,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:12-cr-00333-RDB-1)


Submitted:   July 23, 2013                 Decided:   July 31, 2013


Before GREGORY and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Michael D. Montemarano, MICHAEL D. MONTEMARANO, PA, Columbia,
Maryland, for Appellant. Martin Joseph Clarke, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Kevin       Bernard       Smith        pled    guilty       to       conspiracy         to

commit       access       device        fraud,        in     violation         of       18     U.S.C.

§ 1029(a)(2), (b)(2) (2006) (Count One), and aggravated identity

theft, in violation of 18 U.S.C. § 1028A (2006) (Count Three),

and    the    district          court     sentenced         him     to    a    total         term     of

imprisonment of sixty-five months.                         On appeal, counsel for Smith

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967),      asserting          that    there    are        no    meritorious           issues       for

appeal       but    questioning           whether          Smith    received            ineffective

assistance         of    counsel        at    sentencing.             Smith        has       filed     a

supplemental pro se brief arguing that the statement of facts

submitted      at       his    plea    hearing       was    insufficient           to    provide      a

factual      basis        for     his     guilty       pleas,       rendering           his     pleas

involuntary and constructively amending the indictment.                                         Smith

also   claims       that        counsel      rendered       ineffective            assistance        in

advising him to plead guilty.                   We affirm.

              Prior       to     accepting       a    guilty       plea,       a    trial      court,

through colloquy with the defendant, must inform the defendant

of, and determine that the defendant understands, the nature of

the charges to which the plea is offered, any mandatory minimum

penalty, the maximum possible penalty he faces, and the various

rights he is relinquishing by pleading guilty.                                Fed. R. Crim. P.

11(b)(1).           The       district       court     also        must    ensure        that        the

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defendant’s plea was voluntary, was supported by a sufficient

factual basis, and did not result from force or threats.                        Fed.

R. Crim. P. 11(b)(2), (3); see United States v. Carr, 271 F.3d

172, 178 n.6 (4th Cir. 2001) (“The court must satisfy itself

that   all     the     elements    of        the    charged     offense[s]      were

committed.”).        “In reviewing the adequacy of compliance with

Rule   11,   this    [c]ourt    should    accord      deference    to    the   trial

court’s decision as to how best to conduct the mandated colloquy

with the defendant.”           United States v. DeFusco, 949 F.2d 114,

116 (4th Cir. 1991).

             Because    Smith    did    not    move   the     district   court      to

withdraw his guilty plea, any errors in the plea hearing are

reviewed for plain error.          United States v. Martinez, 277 F.3d

517, 525-26 (4th Cir. 2002).            “To establish plain error, [Smith]

must show that an error occurred, that the error was plain, and

that the error affected his substantial rights.”                   United States

v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007).                    Even if Smith

satisfies these requirements, we retain discretion to correct

the error, “which we should not exercise . . . unless the error

seriously affects the fairness, integrity or public reputation

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

brackets     omitted).     Our    review       of   the   record   leads       us   to

conclude that the facts proffered by the parties during the plea



                                         3
colloquy were sufficient to support Smith’s pleas of guilty and

did not constructively amend the indictment.

            Smith      also     avers    that    counsel    rendered         ineffective

assistance       in    connection        with     his   guilty        pleas    and     his

sentencing.      However, the record does not conclusively establish

any   deficient       performance       of   counsel.      See   United       States    v.

Benton, 523 F.3d 424, 435 (4th Cir. 2008) (providing standard);

United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).

We therefore conclude that the ineffective assistance claims are

not cognizable on direct appeal.                   Rather, to permit adequate

development of the record, Smith must pursue such claims, if at

all, in an appropriate proceeding for post-conviction relief.

United    States      v.   Baptiste,     596     F.3d   214,    216    n.1    (4th   Cir.

2010).

            In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore decline to consider Smith’s claims of ineffective

assistance of counsel and affirm the district court’s judgment.

This court requires that counsel inform Smith, in writing, of

the right to petition the Supreme Court of the United States for

further review.        If Smith 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



                                             4
representation.    Counsel’s motion must state that a copy thereof

was served on Smith.

            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




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