                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-5003


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

LONNIE EDWARD MALONE,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.   James P. Jones, District
Judge. (1:07-cr-00037-JPJ-1)


Submitted:   April 10, 2012                 Decided:   April 20, 2012


Before GREGORY, SHEDD, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Wade T. Anderson, FRITH ANDERSON & PEAKE, P.C., Roanoke,
Virginia, for Appellant.     Zachary T. Lee, Assistant United
States Attorney, Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Lonnie Edward Malone pled guilty pursuant to a written

plea   agreement       to       possession   of    a    short-barreled       shotgun    in

furtherance       of   a     drug     trafficking       crime     and   conspiracy     to

distribute    fifty         grams    or   more    of    methamphetamine.          He   was

sentenced to a total of 330 months in prison (210 months on the

conspiracy count and a consecutive 120-month sentence on the

firearm count).         On appeal, counsel has filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), stating that there

are    no   viable     grounds        for    appeal      but     questioning     whether

Malone’s    guilty      plea        and   appellate      waiver      were   knowing    and

voluntary.    Neither the Government nor Malone has filed a brief.

We affirm.

            First, we note that the Government has not relied on

the appellate waiver on appeal, and we do not raise such waivers

sua sponte.        Thus, we will not enforce the waiver to bar any

meritorious claims.               As such, we decline to address Malone’s

claim regarding the voluntariness of his waiver.

            Turning to Malone’s claim that his plea was unknowing

and    involuntary,         a    trial    court,       through    colloquy      with   the

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

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

                                             2
pleading guilty.           Fed. R. Crim. P. 11(b).            The court also must

determine whether there is a factual basis for the plea and

ensure that the plea did not result from force, threats, or

non-plea agreement promises.              Id.; United States v. DeFusco, 949

F.2d 114, 119-20 (4th Cir. 1991).                 The purpose of the Rule 11

colloquy is to ensure that the plea of guilty is entered into

knowingly and voluntarily.            See United States v. Vonn, 535 U.S.

55, 58 (2002).             Because Malone did not move in the district

court to withdraw his guilty plea, the claim is reviewed for

plain error. 1       See United States v. Martinez, 277 F.3d 517, 525

(4th Cir. 2002).            In the guilty plea context, to satisfy the

plain error standard, the defendant must show inter alia that he

would not have pled guilty but for that error.                    Id. at 532.

                Malone     contends   that      his    plea   was      unknowing    and

involuntary because he reasonably believed that he was pleading

guilty in exchange for a fifteen-year sentence.                         Malone avers

that       he   lacked   the   capacity    to   understand       that   he   was   very

unlikely to receive the mandatory minimum fifteen-year sentence

(five       years    for    the   conspiracy,         followed    by    a    ten   year

       1
       Malone admits that, in general, the appropriate standard
would be plain error; however, he contends that the “unique
circumstances of this case require this Court to apply an
abuse-of-discretion standard.”     Malone provides no citations
supporting the conclusion that an abuse of discretion standard
may   be   applied  in   certain   cases  of   forfeited error.
Accordingly, we reject his contention.



                                           3
consecutive sentence on the firearm count) or to comprehend what

length of sentence he realistically faced.                           In support, Malone

cites to confusion regarding the charge to which he was pleading

guilty, as well as his attorney’s admitted failure to provide

him with an estimate of a Guidelines sentence. 2

                In   order   to   show   that       he   was    incompetent      to    plead

guilty, Malone must show that “his mental facilities were so

impaired . . . when he pleaded that he was incapable of full

understanding and appreciation of the charges against him, of

comprehending         his    constitutional         rights     and    of   realizing     the

consequence of the plea.”                United States v. Truglio, 493 F.2d

574, 578 (4th Cir. 1974).            While Malone only had a seventh grade

education,       limited      ability    to       read   and    write,     and   a    memory

allegedly impaired by medication, both trial counsel and the

district court were able to personally observe Malone and found

him competent and able to understand the proceeding.                                  At the

Rule       11   hearing,      Malone’s     responses           were    appropriate       and

reflected his ability to understand the questions.                               Malone’s




       2
       Malone’s trial counsel averred that he and Malone had not
discussed a probable Guidelines sentence and instead focused on
the applicable mandatory minimum.



                                              4
bald assertions to the contrary are insufficient to show error,

much less plain error. 3

              Next, while there was some confusion at the Rule 11

hearing      surrounding   the   count       to   which   Malone   was    pleading

guilty, it was attenuated from the discussion of mandatory and

Guidelines sentences, which is what Malone claims he did not

understand.       Moreover, based upon our review of the Rule 11

transcript, the court was careful to clear up the confusion and

ensure that Malone understood exactly the count and charges to

which he was pleading guilty.

              Finally, we address trial counsel’s admissions that he

did    not    provide   Malone   with    even      a   rough   estimate    of   the

Guidelines range he faced.        However, neither Rule 11 nor the Due

Process Clause requires that a defendant be informed of a likely

sentence.      Instead, defendants must be made aware of the minimum

and maximum sentences they face, as well as the applicability of

the Sentencing Guidelines.         Fed. R. Crim. P. 11(b)(1)(H), (I),

(M).       Malone was informed of all of these facts, and he stated

that he understood.         Most specifically, Malone agreed in his

plea agreement that he could receive any sentence up to the

       3
       Moreover, as discussed above, to show plain error, Malone
would need to prove that, absent the error, he would have
proceeded to trial.   Malone has not provided any evidence that
he would have foregone a guilty plea had he been aware that a
fifteen-year sentence was not a probability.



                                         5
statutory maximum.             At his Rule 11 hearing, Malone testified

that       he   read,   signed,    and     initialed   each   page    of   his    plea

agreement and that his attorney had explained its provisions to

him.       See United States v. Lambey, 974 F.2d 1389, 1395 (4th Cir.

1992) (holding that Rule 11 testimony may not be repudiated if

information        by    the      court     corrects   earlier       misinformation

provided by attorney and defendant admits to understanding the

court’s advice); Fields v. Att’y Gen. of Md., 956 F.2d 1290,

1299 (4th Cir. 1992) (“Absent clear and convincing evidence to

the contrary, a defendant is bound by the representations he

makes under oath during a plea colloquy.”). 4

                We conclude that Malone has failed to overcome his

Rule       11   testimony      that   he    understood    that   there     were     no

guarantees as to the sentence he could receive.                        As such, we

conclude that his plea was knowing and voluntary.                      Pursuant to

Anders, we have reviewed the entire record in this case for

reversible error and have found none.                    Accordingly, we affirm

the district court’s judgment.




       4
       Moreover, counsel’s inaccurate sentencing predictions do
not generally constitute ineffective assistance.     See United
States v. Foster, 68 F.3d 86, 87-88 (4th Cir. 1995) (rejecting
ineffective assistance claim by defendant who entered a guilty
plea only upon erroneous assurances of counsel that he would not
be considered a “career offender”).



                                             6
          This   court   requires   that   counsel    inform     Malone   in

writing of his right to petition the Supreme Court of the United

States for further review.      If Malone requests that a petition

be filed, but counsel believes that such a petition would be

frivolous,   then   counsel   may   move   this    court   for   leave    to

withdraw from representation.       Counsel’s motion must state that

a copy thereof was served on Malone.              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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