                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4645


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DANIEL ANTONIO MURRAYE, a/k/a D,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Greenville.    G. Ross Anderson, Jr., Senior
District Judge. (6:11-cr-02026-GRA-6)


Argued:   December 11, 2014                 Decided:   February 3, 2015


Before MOTZ and    THACKER,    Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Motion to dismiss denied; judgment affirmed by unpublished per
curiam opinion.


ARGUED: Charles Burnham, BURNHAM & GOROKHOV PLLC, Washington,
D.C., for Appellant.     Elizabeth Jean Howard, OFFICE OF THE
UNITED   STATES  ATTORNEY,   Greenville,   South  Carolina, for
Appellee. ON BRIEF: Eugene V. Gorokhov, Ziran Zhang, BURNHAM &
GOROKHOV PLLC, Washington, D.C., for Appellant. William N.
Nettles, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

           Daniel Antonio Murraye (“Appellant”) agreed to plead

guilty to conspiracy to distribute crack cocaine.                    After signing

a plea agreement and executing a petition outlining his rights

pursuant to Rule 11 of the Federal Rules of Criminal Procedure,

Appellant appeared for his plea hearing.                  At that hearing, the

district court failed to address Appellant individually in open

court regarding, inter alia, the voluntariness of Appellant’s

plea, the nature of his charge, and his potential sentence.                       The

court likewise failed to ensure that a sufficient factual basis

existed   for   the     plea.     These      failures,    which   contravene      the

plain language of Rule 11, constitute plain error.                        However,

although the error was plain, Appellant is unable to carry his

burden of showing the error affected his substantial rights;

i.e., he has not shown a reasonable probability that but for the

errors,   he    would    not    have   pled     guilty.     Therefore,       we   are

constrained to affirm the district court.

                                          I.

           Appellant began using drugs at age 11 and left home at

age 15.    He attended school until ninth grade, was enrolled in

special   education      classes,      and     has   received   no   other   formal

education.

           On August 9, 2011, a District of South Carolina grand

jury returned an indictment charging Appellant with one count of

                                          3
conspiracy to distribute at least 280 grams of crack cocaine,

and six counts of distributing crack cocaine.                               On December 19,

2011, the Government filed a plea agreement in which Appellant

agreed    to    plead    guilty         only     to      the    conspiracy       charge.        The

agreement did not contain a statement of facts.

               On December 20, 2011, Appellant appeared for his plea

hearing      and     filed    a    Petition         to     Enter   Plea     of    Guilty       (the

“Petition”),         which    is        a    pre-printed         form    listing      questions

typically asked at a plea hearing.                             According to the parties,

the Petition is routinely utilized in this district court.                                     Five

other     defendants         also           entered      guilty     pleas      in     the      same

proceeding.        Only one of these other defendants was a purported

co-conspirator of Appellant, however.                             Of the remaining four,

three    were      pleading       guilty       to       participating     in     an   oxycodone

conspiracy, and one was pleading guilty to unarmed bank robbery.

Neither the oxycodone conspiracy nor the bank robbery had any

relationship to Appellant’s guilty plea.                           The propriety of that

plea hearing is at issue in this appeal.                                The details of the

hearing are discussed more fully, infra.

               Appellant was adjudged guilty at the plea hearing, and

on   March     19,    2012,       the       district      court    sentenced        him   to    120

months in prison, the mandatory minimum sentence.

               On March 18, 2013, Appellant filed a motion to vacate

his sentence pursuant to 28 U.S.C. § 2255.                               He contended that

                                                    4
his attorney was ineffective for failing to file a notice of

appeal at Appellant’s request.                 The district court granted the

motion and allowed Appellant 14 days to file a timely notice of

appeal.       Appellant      did    so.        On   appeal,   he   challenges   the

propriety of the district court’s execution of the plea process.

On January 3, 2014, the Government filed a motion to dismiss the

appeal,      arguing   that    Appellant’s          plea   agreement   barred   the

appeal.      See Gov’t’s Mot. to Dismiss, ECF No. 20 (filed Jan. 3,

2014).    That motion is still pending with this court and is also

addressed infra.

                                          II.

              Appellant did not object to the district court’s plea

colloquy below; therefore, we review his appellate claims for

plain error.       See United States v. Olano, 507 U.S. 725, 731-32

(1993); United States v. Massenburg, 564 F.3d 337, 346 (4th Cir.

2009).    We “accord deference to the trial court’s decision as to

how   best    to   conduct    the    [Rule      11    plea]   colloquy   with   the

defendant.” United States v. DeFusco, 949 F.2d 114, 116 (4th

Cir. 1991); see also United States v. Wilson, 81 F.3d 1300, 1307

(4th Cir. 1996) (noting that this court “has repeatedly refused

to script the Rule 11 colloquy, relying rather on the experience

and wisdom of the district judges below”).




                                           5
                                             III.

             Because         it     functions       as    a   waiver       of       important

constitutional          rights,        a     guilty       plea    must         be     entered

“voluntarily,          knowingly,      and    intelligently,           ‘with    sufficient

awareness         of      the       relevant         circumstances         and        likely

consequences.’” Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005)

(quoting Brady v. United States, 397 U.S. 742, 748 (1970)).                                In

evaluating the validity of a guilty plea, we must “look to the

totality     of    the       circumstances         surrounding      it,    granting      the

defendant’s       solemn          declaration       of    guilt    a    presumption       of

truthfulness.”          United States v. Moussaoui, 591 F.3d 263, 278

(4th   Cir.       2010)      (alteration          and    internal      quotation       marks

omitted).

                                              A.

             Rule 11 of the Federal Rules of Criminal Procedure

governs our analysis and provides, in pertinent part, that a

court “must address the defendant personally in open court” and

“must inform the defendant of, and determine that the defendant

understands” a litany of rights and waivers.                           Fed. R. Crim. P.

11(b)(1)(A)-(O) (emphases supplied).                     In addition, a court “must

address the defendant personally in open court and determine

that   the    plea      is    voluntary      and    did    not    result       from   force,

threats, or promises (other than promises in a plea agreement),”

and “[b]efore entering judgment on a guilty plea, the court must

                                              6
determine that there is a factual basis for the plea.”                         Fed. R.

Crim.    P.     11(b)(2)-(3)      (emphases     supplied);        see   also     United

States v. Damon, 191 F.3d 561, 563 (4th Cir. 1999) (stating a

court must conduct a Rule 11 inquiry “before a guilty plea can

be accepted”).

               Rule    11   has   “two    principal      purposes.         First,    it

assists       the     district    judge   in    making    the     constitutionally

required determination that a defendant’s guilty plea is truly

voluntary.          Second, it produces a complete record at the time

the     plea     is     entered    of     the   factors      relevant       to      this

voluntariness          determination.”          Damon,      191     F.3d       at    564

(alteration, citation, and internal quotation marks omitted).

               In 1966, Rule 11 was amended to make clear that the

court is “require[d] to address the defendant personally in the

course of determining that the plea is made voluntarily and with

understanding of the nature of the charge.”                 Fed. R. Crim. P. 11

advisory committee’s note on 1966 amendment.                      The revised rule

also “impose[d] a duty on the court in cases where the defendant

pleads guilty to satisfy itself that there is a factual basis

for the plea before entering judgment.”               Id.    Further,

               [t]he   court  should  satisfy   itself,   by
               inquiry of the defendant or the attorney for
               the   government,   or  by    examining   the
               presentence report, or otherwise, that the
               conduct    which   the    defendant    admits
               constitutes the offense charged in the
               indictment or information or an offense

                                           7
           included therein to which the defendant has
           pleaded guilty.   Such inquiry should, e.g.,
           protect a defendant who is in the position
           of     pleading    voluntarily     with   an
           understanding of the nature of the charge
           but without realizing that his conduct does
           not actually fall within the charge.

Id.

           In       1983,   the    Rule     was   again   amended   to   create   a

harmless error standard for Rule 11 violations, rather than per

se reversal.          See Fed. R. Crim. P. 11(h); United States v.

DeFusco, 949 F.2d 114, 117 (4th Cir. 1991).                  We have explained,

“Under the [1983 amended] Rule 11 standard, . . . this Court may

vacate the conviction made pursuant to the plea only if the

trial court’s violations of Rule 11 affected the defendant’s

substantial rights.”            DeFusco, 949 F.2d at 117.

                                            B.

           Appellant raises multiple arguments that the district

court plainly erred in the manner in which it conducted the plea

hearing.   Appellant contends the district court “relied almost

entirely on the government’s recitation of what was written by

six   defendants      on    a    document    they   purportedly     completed   and

signed outside of court.”            Appellant’s Br. 19.       Specifically, he

claims the district court:

                •    failed to take into account or address
                     his limited education;

                •    failed to ask whether Appellant signed
                     the Petition;

                                            8
               •   failed   to  address   him  individually
                   regarding waiver of his rights;

               •   failed   to  address   him  individually
                   regarding his potential sentence;

               •   failed   to  address   him specifically
                   regarding waiver of his right to appeal
                   and collateral attack;

               •   failed   to  address   him  specifically
                   regarding the Government’s right to use
                   statements made under oath;

               •   failed to address him personally to
                   ensure the plea was not the result of
                   improper coercion;

               •   failed to ensure that he understood the
                   nature of the charge against him; and

               •   failed to establish a factual               basis
                   before accepting the plea.

                                         1.

             To demonstrate error, “a defendant must show that ‘a

legal rule was violated during the district court proceedings.’”

United   States     v.   Benton,   523   F.3d    424,   429   (4th   Cir.   2008)

(quoting United States v. Olano, 507 U.S. 725, 733-34 (1993)).

                                         a.

             Here, the district court erred because it repeatedly

failed to follow the plain language of Rule 11.

             Rule 11 explicitly requires that a court ensure “that

[a]   plea   is    voluntary,”     and   “that   the    defendant    understands

. . . the nature of each charge to which [he] is pleading.”

                                         9
Fed. R. Crim. P. 11(b)(2), (b)(1)(G).              We have explained that in

order to satisfy these requirements, “a trial court must take

into    account   both   the    complexity     of     the      charge      and    the

sophistication of the defendant,” which may be inferred from

“personal    characteristics,      such       as     age,      education,         and

intelligence.”       DeFusco,   949    F.2d    at    117.       But     here,     the

district court failed to personally address Appellant regarding

his    educational   background,   age,     and     competency        to   enter   a

guilty plea.      The court did not even personally ensure in open

court that Appellant had actually signed the Petition, read the

plea agreement, or discussed either document with counsel.

            Rule 11 also directs that, before accepting a guilty

plea, the district court “must address the defendant personally

and in open court and determine that the plea . . . did not

result from force, threats, or promises . . . .”                  Fed. R. Crim.

P. 11(b)(2) (emphasis supplied).           The Petition sets forth three

questions in this regard; however, the court never addressed

this issue personally with Appellant in open court.

            Next, the court is required to “inform the defendant

of, and determine that the defendant understands . . . the right

to plead not guilty[;] the right to a jury trial[;] the right to

be represented by counsel[;] the right at trial to confront and

cross-examine     adverse   witnesses      [and]     to   be    protected        from

compelled self-incrimination[;] [and] the defendant’s waiver of

                                      10
these     trial   rights     if   the    court     accepts      a    plea      of    guilty

. . . .”      Fed. R. Crim. P. 11(b)(1)(B)-(F).                 The Government read

the questions set forth in Section B of the Petition, which

outlined the abovementioned rights, and simply stated as to each

question, “[e]ach defendant has answered yes [i.e., indicated

that he or she understood these rights].”                 J.A. 44-45. 1         However,

the   court    made    no   attempt     to    confirm    that       Appellant       himself

understood the rights he was waiving.

              Rule 11 also requires the district court to inform

Appellant of and ensure that he understands “the terms of any

plea-agreement        provision     waiving       the   right       to   appeal      or   to

collaterally      attack      the       sentence.”         Fed.          R.    Crim.      P.

11(b)(1)(N).      The Petition provides one question to this effect,

and the plea agreement itself delineates these rights.                              But the

court made no separate, individualized inquiry that Appellant

understood these rights, asking only, “[Y]a’ll have heard the

plea agreement.         Is it stated properly?”              J.A. 59.           Appellant

and his purported co-conspirator replied, “Yes sir.”                          Id.

              In addition, Rule 11 requires the district court to

determine that the defendant understands the Government’s right

“to use against the defendant any statement that the defendant


      1
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                             11
gives   under        oath”       in    a   prosecution           for   perjury      or     false

statement.       Fed. R. Crim. P. 11(b)(1)(A).                            But the district

court   did    not     alert      Appellant          to    these    rights    in    the     plea

hearing or via the Petition.

              Rule    11     also      requires       the    court     to    ensure      that   a

defendant understands the maximum and minimum penalties to which

he will be subject by pleading guilty.                             See Fed. R. Crim. P.

11(b)(1)(H)-(I).           Although the Petition contains two blanks that

Appellant      apparently             filled    in        with    these     penalties,      the

district      court        did    not      personally            ensure     that    Appellant

understood them in open court.

                                                b.

              The district court also did not ensure that a factual

basis for the plea existed.                      See Fed. R. Crim. P. 11(b)(3)

(“Before    entering         judgment      on    a    guilty       plea,    the    court   must

determine that there is a factual basis for the plea.” (emphasis

supplied)).      In determining whether a factual basis exists, a

court   should        determine         whether       the        “evidence    presented         is

sufficient      to    demonstrate          that      the     defendant       committed      the

elements of the charged offense.”                          United States v. Mitchell,

104 F.3d 649, 652 (4th Cir. 1997).                         The district court need not

rely on the Rule 11 plea colloquy to do so; “it may conclude

that a factual basis exists from anything that appears on the



                                                12
record.”        United States v. Mastrapa, 509 F.3d 652, 660 (4th Cir.

2007) (internal quotation marks omitted).

            In United States v. Mastrapa, this court vacated a

defendant’s       guilty       plea        because   Mastrapa       did     not    admit     the

necessary mens rea before entering the plea.                          509 F.3d at 654-

55.     This court first noted that in order to prosecute Mastrapa

for drug conspiracy, the Government had to prove that he had

“knowledge of th[e] conspiracy” and “knowingly and voluntarily

participated          in    the    conspiracy.”         Id.    at     657       (emphases    in

original).        Thus, his mens rea “was an essential element to his

guilt.”    Id.

            In vacating the plea, we reasoned, “the district court

could     not     have      found      a    factual    basis     in       the     record     for

Mastrapa’s guilty plea in that the record failed to demonstrate

that    Mastrapa       had     knowledge        of   the   conspiracy           and   that   he

knowingly       and        voluntarily        participated      in    the       conspiracy.”

Mastrapa,       509    F.3d       at   660.      The   lower    court        relied     on   an

affidavit presented by a DEA agent that stated Mastrapa drove a

van to a hotel where a drug transaction occurred and helped

carry grocery bags (which were later found to contain drugs)

from the van to the hotel room.                      See id. at 656.            But Mastrapa

consistently maintained that he did not know what was in the

grocery bags, and thus, he did not have the appropriate mens rea

to commit the conspiracy offense.                    See id. at 658.            We concluded

                                                13
that accepting a guilty plea from a defendant “who did not admit

to an essential element of guilt under the charge . . . would

surely cast doubt upon the integrity of our judicial process

 . . . .”    Id. at 661.

             This court has held, however, that Rule 11 does not

require a district court to “establish through colloquy that a

factual basis exists for the plea.”                 DeFusco, 949 F.2d at 120

(emphasis    supplied)     (concluding      that     the    factual     basis       was

supported    where    defendant    provided        the   court   with    a    signed

statement of facts and admitted on the record that the statement

was “an accurate representation of what happened”).                   Rather, the

court has “wide discretion” to conclude a factual basis exists

“from anything that appears on the record.”                Id.

             Appellant purported to plead guilty to Count One of

the indictment, conspiracy to distribute at least 280 grams of

crack cocaine.       The indictment set forth the offense as follows:

             [Appellant    and  others]   knowingly   and
             intentionally did combine, conspire, agree
             and have tacit understanding with each other
             and with others, both known and unknown to
             the grand jury, to knowingly, intentionally,
             and unlawfully possess with intent to
             distribute   and  distribute   cocaine  base
             . . ., said conspiracy involving 280 grams
             or more of “crack” cocaine . . . .

J.A.   11.     The    elements    of   a    drug    conspiracy    are        “(1)    an

agreement between two or more persons to engage in conduct that

violates a federal drug law; (2) the defendant’s knowledge of

                                       14
the conspiracy; and (3) the defendant’s knowing and voluntary

participation in the conspiracy.”              United States v. Green, 599

F.3d 360, 367 (4th Cir. 2010).

               The   plea   agreement    did   not    contain    a   statement    of

facts.    But, the Government proffered the following information

about Appellant’s case at the plea hearing:

               [T]he Greenville County Sheriff’s Office
               requested assistance of the FBI in the
               investigation of illegal drug and gang
               activity    in   the  Sterling    and  Judson
               communities of Greenville.     Several people
               have pled guilty in front of your Honor,
               including [two individuals].    They provided
               information    about   illegal   drug   sales
               including the involvement of both [alleged
               co-conspirator] and [Appellant].

               Officers made several controlled purchases
               of   crack   cocaine   from  both  of  these
               defendants.     That along with historical
               information provides . . . that [alleged co-
               conspirator] and [Appellant] purchased and
               sold   crack   cocaine   to others  in  this
               conspiracy, [and] that the drug weight
               attributable to them is more than 280 grams
               of crack cocaine.

J.A.    61-62.       Following    the    Government’s     proffer,       the   court

asked,    “Is    that   correct?”   to    which      Appellant    replied,     “Yes,

sir.”    Id. at 62.

               The only statement Appellant made about the offense

was the following: “I agreed to sell illegal drugs and I did

sell    them    crack   cocaine.”       J.A.   65.      When     asked   about   the

amount, Appellant said, “280 grams.”              Id. at 66.


                                         15
            Appellant’s statement and the Government’s proffer do

not    establish        that     Appellant          knowingly         and     voluntarily

participated      in    the    conspiracy.          Appellant        simply    stated       he

“agreed    to    sell    illegal      drugs,”       and     “did      sell    them      crack

cocaine.”       J.A. 65.       But he did not explain who “them” is; with

whom he agreed to sell drugs; that he understood there was a

conspiracy; or that he agreed to be part of a conspiracy.                                  The

Government’s      proffer      does   not    fill       this   gap,    inasmuch       as    it

offers    nothing      more    than   that       Appellant     “purchased       and       sold

crack cocaine to others in this conspiracy.”                       Id. at 61-62.           The

proffer   readily       describes     drug       distribution,        but    not     knowing

participation in a conspiracy.                    As in Mastrapa, the district

court did not ensure, at the most basic level, that Appellant

possessed   the     appropriate       mens       rea,    and   the    evidence       on    the

record     falls       painfully      short         of     establishing         Appellant

“knowingly and voluntarily participated in the conspiracy, [an]

essential element to his guilt.”                 Mastrapa, 509 F.3d at 660, 657

(emphasis in original).

            The court also failed to ensure Appellant understood

“the true nature of the charge.”                   DeFusco, 949 F.2d at 117.                To

the    extent    the    Government      stated          Appellant     was     buying       and

selling from others in the conspiracy, this conclusion was based

on    “historical      information”         that    was    not     explained       to      the

district court or Appellant at his plea hearing.                        J.A. 61.          This

                                            16
is insufficient to establish a factual basis.                       Rule 11 “mandates

that the factual basis be sufficiently specific to enable the

district      court       to     compare      the    conduct        admitted    by     the

defendant,” and proffered by the Government, “with the elements

of the offense charged.”                United States v. Trejo, 610 F.3d 308,

313   (5th        Cir.   2010)       (emphasis    supplied).         Even   though     the

Government mentions others in the alleged conspiracy who had

pled guilty, apparently based on this “historical information,”

there    is       nothing       in    this    record    demonstrating          how    that

information implicated Appellant.

              Furthermore, the Government’s proffer that “[o]fficers

made several controlled purchases of crack cocaine from both

these defendants,” J.A. 61-62, also does not support a factual

basis for conspiracy, as a defendant cannot legally conspire

with a government official.                  See United States v. Edmonds, 679

F.3d 169, 175 (4th Cir. 2012) (“The crime of conspiracy . . .

requires      a    genuine     agreement      between   two    or    more   persons        to

commit   a    crime,      and    an    agreement    between    a     defendant       and    a

government agent, who does not agree to commit another crime but

is engaging the defendant only to establish evidence of a crime,

does not provide evidence of a genuine agreement.”), judgment

vacated on other grounds, 133 S. Ct. 376 (2012); United States

v. Lewis, 53 F.3d 29, 33 (4th Cir. 1995) (“[A] defendant cannot

be convicted for conspiring with a government agent.”); Soto v.

                                             17
United States, 37 F.3d 252, 256 (7th Cir. 1994) (per curiam)

(“[A]   single       defendant     cannot      ‘conspire’         with    undercover

officers alone.”).

            For all these reasons, the district court erred in its

commission of the Rule 11 hearing.

                                         2.

            These errors are plain because they were “‘obvious’

and   ‘clear    under    current    law.’”        Benton,     523       F.3d   at   433

(quoting Olano, 507 U.S. at 734).               The court manifestly failed

to follow the requirements of Rule 11.                     See United States v.

Massenburg, 564 F.3d 337, 346 (4th Cir. 2009) (“[A] district

court’s failure to alert a criminal defendant to a potential

mandatory minimum sentence is a serious omission that strikes at

the core of Rule 11.”); Mastrapa, 509 F.3d at 660-61 (finding

plain   error    where   the   district       court   accepted      a    guilty     plea

“from a defendant who did not admit to an essential element of

guilt under the charge”); United States v. Carter, 662 F.2d 274,

276 (4th Cir. 1981) (“A mere statement by the accused that he

understands the charge against him does not relieve the court of

the responsibility of further inquiry.                 The court must explain

the meaning of the charge and what basic acts must be proved to

establish guilt. . . . [T]he court must personally address the

defendant      and   ascertain     the    nature      of    his    understanding.”

(citation omitted)); see also McCarthy v. United States, 394

                                         18
U.S. 459, 464 (1969) (Rule 11 exists to ensure that “a defendant

who pleads guilty understands the nature of the charge against

him and whether he is aware of the consequences of his plea.”).

            Moreover,      even      though       we    have     held    that     in     some

circumstances the use of a pre-written and pre-signed form like

the Petition does not necessarily contravene Rule 11, in those

cases the district courts also performed a personalized Rule 11

examination        in   open   court.            See,    e.g.,      United      States     v.

Enamorado-Ramirez, 423 F. App’x 263, 264 (4th Cir. 2011) (per

curiam) (finding no plain error where defendant used a written

Rule 11 form, “communicated with the district court through an

interpreter[,       and]   assured     the       court    that    he    understood        the

nature   of    the      proceedings,        the    rights      he      waived    and      the

penalties     he    faced,     and    was     satisfied        with     his     attorney’s

performance”); 2 see also United States v. Cotal–Crespo, 47 F.3d

     2
        Two other unpublished opinions from this court have
addressed plain error challenges to such plea hearing practices
but have rejected them on the third prong of the plain error
test.   See United States v. DeYoung, 571 F. App’x 231, 232-33
(4th Cir. 2014) (upholding guilty plea where, even assuming the
district court’s use of the Petition in a Rule 11 hearing was
plain error, Appellant had not shown a reasonable probability
that, but for the error, she would not have entered the plea);
United States v. Reeves, 533 F. App’x 301, 304 (4th Cir. 2013)
(finding that alleged plain errors did not affect defendant’s
substantial rights, but notably, suggesting that evidence before
the district court at the plea hearing, which was similar to the
evidence before the district court in the case at hand, “may
indeed be inadequate to establish an independent factual basis
for the plea”).


                                            19
1, 4-5 (1st Cir. 1995) (holding that district court’s use of

written document, in conjunction with colloquy with defendant,

satisfied     Rule    11,   explaining,               “What    is    critical    is     the

substance of what was communicated by the trial court, and what

should reasonably have been understood by the defendant, rather

than the form of the communication”).                         We simply did not have

that situation here.

             For these reasons, the district court plainly erred.

Our inquiry does not end there, however.

                                               3.

             Appellant bears the final burden of showing that the

plain error in this case affected his substantial rights.                               See

Fed. R. App. P. 52(b); Olano, 507 U.S. at 734.                             “[A] defendant

who seeks reversal of his conviction after a guilty plea, on the

ground that the district court committed plain error under Rule

11, must show a reasonable probability that, but for the error,

he would not have entered the plea.”                    United States v. Dominguez

Benitez,     542   U.S.   74,   83       (2004);       see    also   United    States    v.

Sanya, Nos. 13-4937 & 13-4938, 2014 WL 7210423 (4th Cir. Dec.

17, 2014).

             Thus, on appeal, Appellant “must . . . satisfy the

judgment of the reviewing court, informed by the entire record,

that   the   probability    of       a    different       result     is    sufficient    to

undermine     confidence        in       the        outcome    of    the     proceeding.”

                                               20
Dominguez    Benitez,       542    U.S.       at    83   (internal    quotation       marks

omitted) (emphasis supplied); see also United States v. Bradley,

455   F.3d   453,    462    (4th       Cir.    2006)     (“We   consider       the   entire

record in determining whether the[] [plain error] requirements

have been met.”).        We have explained,

             When determining whether a Rule 11 error
             affected a defendant’s substantial rights,
             we consider what information was provided to
             the defendant when he pleaded guilty, what
             additional   information   would  have  been
             provided by a proper Rule 11 colloquy, and
             how the additional information would have
             affected the decision to plead guilty.

United States v. Hairston, 522 F.3d 336, 341 (4th Cir. 2008).

Even if we find the error affected substantial rights, we will

not correct        the   error    unless       it    would    “seriously       affect   the

fairness,      integrity          or      public         reputation       of     judicial

proceedings.” Sanya, 2014 WL 7210423, at *2 (internal quotation

marks omitted).

                                              a.

             Appellant’s attempts to satisfy his burden fall flat.

He first attempts to show a reasonable probability that he would

have not pled guilty but for the error by explaining (1) he

instructed his attorney to file an appeal after the sentencing

hearing;     (2)     “the    district          court’s       near-total    failure      to

personally address [Appellant] . . . created an unacceptably

high risk that defendants like [Appellant] will plead guilty in


                                              21
this    district       court    without       fully      understanding         their       rights

. . . . ,” Appellant’s Br. 28-29; and (3) he “had a number of

potentially viable defenses that are apparent from the record,

such as multiple-conspiracies theory or a buyer-seller theory,”

Appellant’s Reply Br. 8.

               To be sure, had the district court performed the Rule

11 plea hearing correctly, it would have -- at the hearing --

personally      addressed       Appellant       regarding         the       voluntariness     of

the plea, his education, and his competency; insisted that the

Government          specifically      explain          what     evidence       it     possessed

showing       Appellant’s       knowledge       of       the    conspiracy;          personally

consulted with Appellant as to each constitutional right he was

waiving;      explained        to   Appellant          that    any    statements       he   made

could    be    used       against    him   in      a    perjury       proceeding;       allowed

Appellant to elaborate more on his statement of his involvement

with    the     charged        crime;      ensured        Appellant          read    the    plea

agreement       and       Petition      and     discussed            them     with    counsel;

confirmed      Appellant’s          understanding         of    the     mandatory       minimum

sentence;      and     ensured      that    the        plea    was    being    entered      into

without threat, promise, or coercion.                         See Hairston, 522 F.3d at

341.

               It    is    unclear,     however,        how    this     information         would

have influenced Appellant’s decision to plead guilty, if at all.

See Hairston, 522 F.3d at 341.                         We have no statements on the

                                              22
record, at any stage of the trial proceedings, demonstrating

that Appellant wished to withdraw his guilty plea or would have

gone to trial but for the errors.                   Compare Massenburg, 564 F.3d

at   343    (appellant          did   not   show   his     substantial      rights   were

affected where “there are no statements on the record before us

suggesting that Massenburg would not have pleaded guilty if the

district      court       had    properly    informed      him   of   the    sentencing

exposure that he faced”), with Sanya, 2014 WL 7210423, at *7

(concluding that Sanya’s substantial rights were affected based

on his refusal to sign a plea agreement before the plea hearing,

the district court’s “repeated and direct . . . exhortations” to

plead      guilty    during       the   hearing,     and    Sanya’s   “[i]mmediate[]

. . . withdr[awal of] his insistence on going to trial”), and

Hairston, 522 F.3d at 342 (same, where Hairston stated on the

record, “Your Honor, I would not have signed a paper [to be

incarcerated] for 45 years.                 My kids would never see me again

. . . .      I would never have signed for no 45 years”; thus, “the

record establishes that Hairston would not have pleaded guilty

if he had known” his exposure at sentencing (internal quotation

marks omitted)).

                                             b.

              With regard to the factual basis, Appellant further

argues,     “if     the    district     court      had   correctly    concluded      that

[Appellant’s] guilty plea lacked a factual basis, a different

                                             23
outcome    would       have     been    not    just        reasonably          probable,       but

certain.”         Appellant’s        Br.     31;     see        also    Fed.     R.    Crim.    P.

11(b)(3).        But on plain error review, we “may consult the whole

record when considering the effect of any error on substantial

rights.”       United States v. Vonn, 535 U.S. 55, 59 (2002); see

also Dominguez         Benitez,      542     U.S.     at    80     (“[W]e       explained      [in

Vonn] that in assessing the effect of Rule 11 error, a reviewing

court     must     look    to    the        entire     record,          not     to    the    plea

proceedings alone . . . .”); cf. United States v. Hildenbrand,

527 F.3d 466, 475 (5th Cir. 2008) (“When determining whether

there is a factual basis for a guilty plea, inferences may be

fairly drawn from the evidence adduced after the acceptance of a

guilty plea but before or at sentencing,” including evidence set

forth     in     the    Presentence          Investigation              Report.).            Here,

Appellant’s Presentence Investigation Report, to which he did

not   object,      recites      12     paragraphs          of    facts,        spanning      three

pages,      that       demonstrate           Appellant’s               knowledge       of      and

participation in the conspiracy.                     Cf. Mastrapa, 509 F.3d at 660

(finding       defendant’s       substantial         rights        were       affected      where

defendant       consistently         stated    that        he     had     no    idea    he     was

transporting       drugs      for     the    other     members           of    the    purported

conspiracy, even after the plea hearing).

               Our review of the record in this case does not show

that the Rule 11 errors “influenced [Appellant’s] decision to

                                              24
plead guilty and impaired his ability to evaluate with eyes open

the    direct       attendant         risks      of      accepting        criminal

responsibility.”       United States v. Thorne, 153 F.3d 130, 133

(4th Cir. 1998) (internal quotation marks omitted).                      Appellant

therefore fails to show his substantial rights were affected,

and we are compelled to affirm the district court.

                                        C.

            The Government’s motion to dismiss the appeal based on

the   appellate     waiver     in    Appellant’s      plea   agreement     remains

pending.     For an appeal waiver to be effective, “the record must

show that the waiver was based upon a knowing and intelligent

decision.”       United States v. General, 278 F.3d 389, 400 (4th

Cir. 2002) (internal quotation marks omitted).                We must evaluate

this issue “by reference to the totality of the circumstances,

including the experience and conduct of the accused, as well as

the accused’s educational background and familiarity with the

terms of the plea agreement.”                Id. (internal quotation marks

omitted).

            As     discussed        above,     Appellant      has    a     limited

educational      background    and    was    enrolled   in   special     education

classes.     The district court never explained the plea agreement

to him or sufficiently ensured that his attorney did so.                       The

district court also never asked specifically whether Appellant

understood the waiver of his appeal rights.                    Considering the

                                        25
totality of the circumstances, we conclude Appellant’s waiver

was   neither       knowing       nor   intelligent.         See     United      States    v.

Manigan, 592 F.3d 621, 627 (4th Cir. 2010) (An appellate waiver

“is   not     knowingly      or    voluntarily        made   if    the    district     court

fails    to    specifically         question        the   defendant       concerning      the

waiver      provision       of    the    plea    agreement        during    the    Rule    11

colloquy and the record indicates that the defendant did not

otherwise       understand        the    full       significance     of    the    waiver.”

(internal quotation marks omitted)).                      But cf. United States v.

Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995) (waiver was

effective where the trial judge “established that the defendant

was educated, was represented by counsel, and had discussed with

her lawyer the nature of the charge to which she was pleading”);

United States v. Attar, 38 F.3d 727, 731-32 (4th Cir. 1994)

(waiver       was    valid       and    enforceable        where     the    trial      court

“conducted      an    extensive         Rule    11    colloquy     with    [defendant],”

where    “the       court    established        that      [defendant]      was     a   well-

educated man with a Ph.D. in chemistry [and] was fully competent

to plead for himself and the corporate defendant”; and the court

“then summarized the terms of the written plea agreement for

[defendant],        including      the    provision       waiving     appeal      rights”).

Therefore, the motion is DENIED.




                                               26
                                            IV.

               We may well have reached a different disposition today

had trial counsel objected to the district court’s disregard for

the    plain    language     of    Rule    11.        It       is    also    noted    that,    as

represented at oral argument, the habit of allowing the Petition

to    serve    as    a   proxy    for    personalized           courtroom       contact     with

defendants in this particular district court has gone largely

unchallenged        by    either   side     of      the    plea          process.     The    plea

process is meant to “bring[] to the criminal justice system a

stability and a certainty” that, in this case, were noticeably

lacking.        Premo v. Moore, 131 S. Ct. 733, 745 (2011).                                   The

United States Attorney’s office would do well to remember that

it    is   “the       representative       .     .    .        of    a     sovereignty      whose

obligation       to      govern    impartially            is    as       compelling    as     its

obligation to govern at all; and whose interest, therefore, in a

criminal prosecution is not that it shall win a case, but that

justice shall be done.”                 Berger v. United States, 295 U.S. 78,

88 (1935).          Thus, the Government should stand as a conservator

of the plea process, not a silent beneficiary of shortcuts.

                                               V.

               For the foregoing reasons, the Government’s motion to

dismiss is denied, and the district court is affirmed.

                                                               MOTION TO DISMISS DENIED;
                                                                       JUDGMENT AFFIRMED


                                               27
