                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4779


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOSEPH FRANKLIN BROWN, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.    Deborah K. Chasanow, Senior District
Judge. (8:08-cr-00529-DKC-1)


Submitted:   February 27, 2015              Decided:   March 5, 2015


Before KING, GREGORY, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Allen H. Orenberg, ORENBERG LAW FIRM, P.C., North Bethesda,
Maryland, for Appellant.     Rod J. Rosenstein, United States
Attorney, James I. Pearce, Special Assistant United States
Attorney, Arun Rao, Assistant United States Attorney, Sujit
Raman, Chief of Appeals, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Joseph       Brown,     Jr.,     appeals    his     conviction        following    a

guilty plea to using, carrying, or brandishing a firearm during

a crime of violence, in violation of 18 U.S.C. § 924(c) (2012). 1

Brown asserts that the district court, relying on then-existing

law, failed to inform him that brandishing was an element of the

§ 924(c) offense that must be proven by the Government.                               Brown

also       argues    that      the    district     court    failed      to    adequately

establish that he had, in fact, brandished a firearm.                               Finding

no reversible error, we affirm.

       Because Brown did not move to withdraw his guilty plea, we

review his challenge to his plea for plain error.                         United States

v. Sanya, 774 F.3d 812, 815 (4th Cir. 2014); United States v.

Adepoju, 756 F.3d 250, 259 (4th Cir. 2014) (applying plain error

review to unpreserved error under Alleyne v. United States, 133

S. Ct. 2151 (2013)).             To establish plain error, a defendant must

show: (1) there was error; (2) the error was plain; and (3) the

error      affected      his   substantial        rights.     Henderson        v.    United

States,      133    S.   Ct.    1121,    1126     (2013).     In    the      guilty    plea

context,       a    defendant         meets   this    burden       by     “show[ing]     a

reasonable probability that, but for the error, he would not

       1
       Brown also pled guilty to conspiracy to commit armed bank
robbery, armed bank robbery, and being a felon in possession of
a firearm. He does not challenge these convictions on appeal.



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have entered the plea.”               United States v. Davila, 133 S. Ct.

2139, 2147 (2013) (internal quotation marks omitted).                              Even if a

defendant    satisfies       these    requirements,            we    will    exercise      our

discretion    to    remedy     the    error      only    if     “the    error      seriously

affects the fairness, integrity or public reputation of judicial

proceedings.”         Henderson,       133       S.   Ct.      at    1126-27       (internal

quotation marks and brackets omitted).

     In   Alleyne,     the     Supreme       Court      held     that    any       fact   that

increases    a     mandatory     minimum         sentence       must    be     charged      by

indictment and admitted by the defendant or found by a jury

beyond a reasonable doubt.             133 S. Ct. at 2163; United States v.

Strayhorn,    743    F.3d    917,     926     (4th      Cir.)       (applying      Alleyne),

cert. denied, 134 S. Ct. 2689 (2014).                      Accordingly, we conclude

that, in light of Alleyne, the district court plainly erred when

it misrepresented to Brown the Government’s burden of proof on

the element of brandishing. 2               See Bousley v. United States, 523

U.S. 614, 618-19 (1998).             However, Brown has not shown, or even

asserted,    that    he     would     not    have       pled    guilty       had    he    been

correctly    apprised     of    the    elements       of    the      offense.        Because

     2
       The district court correctly stated the law as it existed
at the time of Brown’s plea.    See Harris v. United States, 536
U.S. 545 (2002), overruled by Alleyne, 133 S. Ct. at 2163.
However, plain error is assessed based on the state of the law
at the time of our review, not at the time of the district
court’s actions.   Johnson v. United States, 520 U.S. 461, 468
(1997).



                                             3
there is no evidence that the error actually affected Brown’s

decision    to    plead    guilty,       we   hold     that       Brown       has    failed      to

establish that the error affected his substantial rights.

       We also hold that the facts admitted by Brown during the

plea hearing establish an adequate factual basis to support the

plea.     See United States v. Ketchum, 550 F.3d 363, 366 (4th Cir.

2008)    (providing       standard).          A    defendant           is    liable       for   his

coconspirator’s act of brandishing a firearm when he “actively

participated      in     the     underlying        .    .    .     crime       with        advance

knowledge that a confederate would [brandish] a gun during the

crime’s    commission.”          Rosemond         v.   United      States,          134    S.   Ct.

1240,    1243    (2014).       Brown     admitted       in       the    factual       statement

accompanying his plea that a coconspirator brandished a rifle

throughout the bank robbery to coerce the bank’s manager and

that Brown helped plan the robbery, provided the coconspirator

with the rifle, and was with him during part of the time when he

was     brandishing      it.       See    18       U.S.C.        § 924(c)(4)          (defining

“brandish”).

       Accordingly, we affirm the judgment of the district court.

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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