                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4897


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MARION IRBY,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.    G. Ross Anderson, Jr., Senior
District Judge. (6:07-cr-01211-GRA-1)


Submitted:   February 16, 2011            Decided:   March 17, 2011


Before KING, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David B. Betts, Columbia, South Carolina, for Appellant.
Maxwell B. Cauthen, III, Assistant United States Attorney,
Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Marion Irby pled guilty to being a felon in possession

of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a)

(2006).      The    district      court     sentenced         Irby    to     188    months’

imprisonment.        In   this    appeal,       Irby’s     counsel         filed   a   brief

pursuant to Anders v. California, 386 U.S. 738 (1967), asserting

that    there      are    no     meritorious        grounds      for        appeal,       but

questioning      whether       Irby’s       guilty       plea        was     freely        and

voluntarily made considering that the district court failed to

fully comply with Fed. R. Crim. P. 11.                        Irby filed a pro se

supplemental brief, asserting that the district court erred in

categorizing him as a career offender because his South Carolina

burglary   convictions         are   not    crimes       of   violence        under       U.S.

Sentencing      Guidelines      Manual      (“USSG)      §    4B1.1        (2007).        The

Government elected not to file an answering brief.

           The sole issue counsel raises on appeal is that Irby’s

guilty plea is involuntary because the district court failed to

inform him that, pursuant to Fed. R. Crim. P. 11(b)(1)(B), he

could persist in his plea of not guilty.                      Because Irby did not

raise this issue in the district court or move to withdraw his

guilty plea on the basis of this omission, we review the issue

for plain error.          See United States v. Vonn, 535 U.S. 55, 59

(2002); United States v. Massenburg, 564 F.3d 337, 342 (4th Cir.

2009)   (stating      standard       of    review    for      unpreserved          Rule    11

                                            2
error).     To establish plain error, Irby must show that “(1) an

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

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

To demonstrate an impact on his substantial rights, Irby must

establish     that,     but   for      the    error,      he    would       not    have   pled

guilty.     Id.     Even if plain error is found, we will exercise our

discretion     to    notice     the    error      “only    if       the    error   seriously

affects the fairness, integrity or public reputation of judicial

proceedings.”        Id. (internal quotation marks omitted).

              Here, counsel is correct that the district court did

fail to inform Irby of his right to persist in his guilty plea.

This omission was an error that was plain, satisfying the first

two prongs of the plain error test.                     However, counsel does not

assert, and the record does not suggest, that Irby would not

have pled guilty had he received that information at the Rule 11

hearing.      Therefore, Irby fails to establish the third prong of

plain error, that the error affected his substantial rights.

              The     district        court       otherwise         complied       with     the

requirements of Rule 11 in accepting Irby’s guilty plea.                                  Thus,

the district court adequately ensured that the guilty plea was

knowing    and      voluntary    and     supported        by    a    sufficient      factual

basis, and we affirm Irby’s conviction.                         See United States v.

DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991).



                                              3
               Irby bases his pro se challenge to his sentence on a

misunderstanding           of    the    basis         for      that    sentence.          Irby     was

sentenced       as    an    armed       career            criminal,        18   U.S.C.     § 924(e)

(2006), USSG § 4B1.4, rather than as a career offender, USSG

§§ 4B1.1,      4B1.2.           In   order      to        be   considered       as   a    predicate

conviction under the Armed Career Criminal Act, a burglary need

not be of a dwelling.                  Taylor v. United States, 495 U.S. 575,

599 (1990) (“We conclude that a person has been convicted of

burglary       for    purposes         of   a     §       924(e)      enhancement        if   he   is

convicted of any crime, regardless of its exact definition or

label, having the basic elements of unlawful or unprivileged

entry    into,       or    remaining        in,       a    building        or   structure,       with

intent    to    commit      a    crime.”).                In   contrast,        in   order    to    be

considered as a predicate crime of violence for career offender

status,    a    burglary         conviction           must     be     of   a    dwelling.        USSG

§ 4B1.2(a)(2) & cmt. 1.                 Because Irby was sentenced as an armed

career criminal, the district court did not err in considering

as prior violent felonies his state convictions for burglary of

commercial buildings.                Irby therefore was properly sentenced as

an armed career criminal.

               In accordance with Anders, we have reviewed the record

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

We therefore affirm Irby’s conviction and sentence.                                      This court

requires that counsel inform Irby, in writing, of the right to

                                                  4
petition   the     Supreme     Court    of       the    United     States      for   further

review.    If Irby 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 Irby.

                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




                                             5
