                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 07-4051


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

KENNY REGAN MAJOR,

                Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
Judge. (7:06-cr-00813)


Argued:   September 26, 2008                 Decided:   October 27, 2008


Before MICHAEL and MOTZ, Circuit Judges, and James C. DEVER,
III, United States District Judge for the Eastern District of
North Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED:   Kirsten Elena Small, NEXSEN PRUET, Greenville, South
Carolina, for Appellant.   Elizabeth Jean Howard, OFFICE OF THE
UNITED   STATES  ATTORNEY,   Greenville,   South   Carolina,  for
Appellee.    ON BRIEF:    Benjamin T. Stepp, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenville, South Carolina, for Appellant.     W. Walter Wilkins,
United States Attorney, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Kenny    Regan      Major      pleaded   guilty     to    taking      money    or

property from a financial institution “by force and violence, or

by intimidation” in violation of 18 U.S.C. § 2113(a) (2000).                         On

appeal, Major contends that no factual basis supports his guilty

plea because the record before the district court contains no

information to demonstrate that he used force and violence or

intimidation       to    rob   the    bank.     Major     did    not     raise      this

objection     in   the    district     court   and,   therefore,       in   order    to

succeed on appeal, he must demonstrate that the district court

plainly erred when it found a factual basis for his plea.                        Major

has failed to do this.         Accordingly, we affirm his conviction.



                                          I.

      On July 19, 2006, a criminal complaint was filed against

Major alleging that he had committed bank robbery in violation

of   18   U.S.C.    §    2113(a)     (2000).    The     affidavit      submitted     in

support of the complaint detailed the following alleged criminal

conduct of Major:

      Investigation revealed a black male described as late
      20’s to early 30’s, 5’6” – 5’8”, medium build, clean
      cut, wearing a baseball cap, shorts and a green t-
      shirt, entered the bank and approached the teller
      counter.    The robber asked for some quarter wraps
      under the pretext of bank business from the teller at
      station #1.    When the teller moved to the drive-thru
      window to retrieve the wraps, the robber moved around
      the counter to the secured access door entering the

                                          2
       teller area.    The robber climbed the access door and
       moved to teller station #1.        He placed his hands
       inside   his   shirt    to  avoid  direct   handling   of
       materials, grabbed what he believed to be the money
       drawer and forced it open.      The drawer was a supply
       drawer which contained no money.        The robber then
       moved to teller station #2 and again forced open a
       drawer with his hands covered.     From station #2, the
       robber   obtained    approximately  $1610   in   currency
       including bait bills and a dye pack.          The robber
       stuffed the monies under his shirt and left the teller
       area by climbing back over the secured door.           He
       exited the front door of the bank towards the main
       parking lot.    The robber was last seen traveling on
       foot.

       In October, 2006, Major appeared before the district court

and pleaded guilty to a one-count indictment charging him with

bank robbery.        At the change of plea hearing Major agreed with

the following summary of the crime as presented by the Assistant

United States Attorney:

       On July 18th of this year, Mr. Major entered the
       Palmetto Bank on Asheville Highway in Inman.     He
       approached the teller counter and distracted one of
       the tellers and then jumped over the secured access
       door to get behind the teller line.  While there he
       obtained money including a dye pack. He stuffed the
       money under his shirt, jumped back over the access
       door and ran out of the bank.

       Also at the plea hearing, Major stated that he understood

that    he   was     charged    with   having        “by   force,   violence   and

intimidation [taken] from the person and presence of employees

of Palmetto Bank . . . money belonging to the bank insured by

the    FDIC.”   He    further    stated       that    he   understood   that   the

elements of the crime with which he was charged were that he


                                          3
“took money from the bank employees in possession of the bank;

the taking was either by force, violence or intimidation; and

the    deposits     were    insured    by        the   Federal    Deposit        Insurance

Corporation.”        Having stated that he understood the crime with

which   he    was   charged    and    the        elements   of    that    crime,       Major

stated that he still wished to plead guilty.                              Later in the

hearing he stated at least twice more that he was guilty.

       On December 11, 2006, the district court sentenced Major to

180 months of imprisonment and three years supervised release.

At    the    sentencing     hearing,    the        district      court    accepted       the

findings      and    guidelines       calculations          contained       in     Major’s

presentence report.           Paragraph five of the report states the

following with respect to the offense conduct:

       Records reveal that on July 18, 2006, the defendant
       entered the Palmetto Bank, FDIC, located at 11500
       Asheville Highway in Inman, South Carolina.  He asked
       for some quarter wraps under the pretext of bank
       business. When the teller moved away from the area to
       obtain the wraps, defendant Major moved around the
       counter, climbed over an access door, and forced open
       two teller drawers.     He obtained $1,610 in U.S.
       currency, bait money, and a dye pack, from the second
       drawer.   He stuffed the money in his shirt and left
       the bank.

Three   days    later      judgment    was       entered    in   the     case,    and,    on

December      27,   2006,    Major    filed       a    notice    of    appeal     of   that

judgment.       He argues on appeal that no factual basis supports

his guilty plea.



                                             4
                                                II.

       Because Major did not object to or seek to withdraw his

guilty plea in the district court, we review the acceptance of

the plea for plain error.                  See United States v. Mastrapa, 509

F.3d   652,     657    (4th    Cir.       2007).        Under    plain       error      review,

appellate courts may notice an error that was not preserved by

timely objection only if the defendant can demonstrate (1) that

an error occurred, (2) that it was plain, and (3) that the error

affected      the     defendant’s         substantial         rights;       if   these    three

criteria      are     met,    an    appellate         court    retains       discretion        to

correct a forfeited error if (4) the “error seriously affect[s]

the    fairness,       integrity          or     public       reputation         of    judicial

proceedings.”         United States v. Bradley, 455 F.3d 453, 461 (4th

Cir. 2006) (quoting United States v. Olano, 507 U.S. 725, 731-32

(1993)).       Major contends that the district court plainly erred

by accepting a guilty plea without a sufficient factual basis.

       Before a court may enter judgment on a guilty plea, it must

find a factual basis to support the plea.                               Fed. R. Crim. P.

11(b)(3).      The factual basis may be supported by anything in the

record.        See    Fed.    R.        Crim.    P.   11(b)(3);     United            States   v.

DeFusco, 949 F.2d 114, 120 (4th Cir. 1991).                             A district court

has    wide    discretion          in   determining       whether       a    factual      basis

exists.       Mastrapa, 509 F.3d at 656; United States v. Morrow, 914

F.2d 608, 611 (4th Cir. 1990).                        In order to find a factual

                                                 5
basis, the court need not establish that a jury would find the

defendant     guilty       or   even    that       the    defendant    is    guilty    by    a

preponderance of the evidence.                     The court must determine only

“that the conduct to which the defendant admits is in fact an

offense under the statutory provision under which he is pleading

guilty.”      United States v. Carr, 271 F.3d 172, 178-79 n.6 (4th

Cir. 2001)(quoting United States v. Maher, 108 F.3d 1513, 1524

(2nd Cir. 1997))(interpreting an earlier version of Rule 11).

      In this case involving bank robbery, the factual basis for

the plea requires information that Major “by force and violence,

or by intimidation [took or attempted to take] from the person

or presence of another . . . money or any other thing of value

belonging to, or in the care, custody, control, management, or

possession of, any bank, credit union, or any savings and loan

association.”          See 18 U.S.C. § 2113(a) (2000).                      Neither party

contends      that   Major      used    force       and    violence.        Instead,       the

parties      dispute    whether        the   district       court     plainly      erred    in

finding a factual basis sufficient to conclude that Major used

intimidation to rob the bank.                Intimidation occurs in situations

in   which    a   defendant’s       conduct         is    “reasonably       calculated      to

produce    fear”     and    where      “an   ordinary       person     in    the   teller’s

position reasonably could infer a threat of bodily harm from the

defendant’s acts.”          United States v. Wagstaff, 865 F.2d 626, 627



                                               6
(4th   Cir.   1989)(citations,        emphasis,   and   internal      quotations

omitted).

       Assuming, without deciding, that the district court erred

in accepting Major’s plea, that error was not plain.                    An error

is plain only when it is “‘obvious’ and ‘clear under current

law.’” United States v. Benton, 523 F.3d 424, 433 (4th Cir.

2008)(quoting United States v. Olano, 507 U.S. 725, 734 (1993)).

Although the law at issue here is “obvious and clear” that there

must be a sufficient factual basis for a guilty plea, Fed. R.

Crim. P. 11(b)(3), the law is not obvious and clear that the

record in this case did not establish a factual basis for the

crime of bank robbery.

       Indeed the closeness of this question is illustrated by two

earlier     cases   of   this   court.       In    Wagstaff,    the     evidence

presented at trial revealed that the defendant entered a savings

and loan, approached the tellers’ counter, put on a ski mask and

sunglasses, walked through an open gate into the teller area,

took forty-five dollars from a teller’s open cash drawer, and

was then forced to flee when a customer attacked him.                   865 F.2d

at 627.     The defendant was at all times at least eight feet from

the nearest teller, was not wearing or carrying a weapon, did

not present any written note, said nothing, and made no overtly

threatening    gestures.        Id.      Based    on   that   account    of   the

robbery, we held, as a matter of law, that the evidence was

                                        7
insufficient      to     demonstrate     a     taking       by    intimidation       in

violation of 18 U.S.C. § 2113(a).             Id. at 629.

     On the other hand, even more recently in United States v.

Woodrup, 86 F.3d 359 (4th Cir. 1996), we reached the contrary

conclusion on quite similar facts. There evidence produced at

trial    showed    that    the   defendant      entered          the   bank,    looked

directly at a teller, walked very quickly across the lobby to

the teller position, reached across the counter as if trying to

grab the teller, and vaulted over the counter headfirst, causing

the teller to back away screaming.                  Id. at 363.        The defendant

did not present a note, show a weapon or make an oral demand for

money.     Id.      We    nevertheless       held    that    sufficient        evidence

supported the jury finding that the teller reasonably could have

inferred a threat of bodily harm.             Id. at 364.

     Neither      Wagstaff    nor   Woodrup         make    “obvious     and    clear”

whether the evidence in the case at hand provided a sufficient

factual basis for conviction.            Unlike the defendant in Woodrup,

Major did not vault over the counter at any particular teller,

and, in fact, he purposely distracted the teller to get her out

of his way.       Major did, however, vault over the security door

and force open a drawer rather than walk through an open door

and take money from an already open drawer as in Wagstaff.

     Major’s case also differs from Wagstaff and Woodrup in that

in his case there was not a trial during which witnesses could

                                         8
explain in detail the defendant’s behavior.                        In Major’s case,

the    record      contained     some      information      that    suggested     Major

violated 18 U.S.C. § 2113(a) (2000), and Major admitted to the

district      court   that     he   had    engaged    in    the    relevant     criminal

conduct.       At the plea hearing, Major stated that he understood

that he was charged with robbing a bank “by force, violence and

intimidation” and that the elements of the crime with which he

was charged included taking money from a bank “either by force,

violence or intimidation.”                 Then, when asked by the district

court whether he was guilty of the charged crime, he stated that

he was, and then twice reiterated that he was guilty.

      Of      course,   a      defendant’s         admission       of   guilt    cannot

substitute for the district court’s finding of a factual basis.

See, e.g., United States v. Carr, 271 F.3d 172, 179-80 (4th Cir.

2001).       In this case, however, where Major knew whether he used

force, violence, or intimidation to rob the bank, his admission

of    that    element    provided         further    support      for   the     district

court’s finding that there was a sufficient factual basis for

Major’s guilty plea.            Cf. United States v. Mastrapa, 509 F.3d

652, 660-61 (4th Cir. 2007) (holding that the district court

plainly erred in finding a sufficient factual basis where the

defendant repeatedly protested the mens rea element of the crime

and the government failed to “fill the gap” with facts); Carr,

271   F.3d    at   179-80    (holding       that    the    district     court   plainly

                                             9
erred when it found a sufficient factual basis for a federal

arson charge despite the defendant’s admission that he set fire

to a building that moved in interstate commerce because the plea

proceeding did not adequately demonstrate that the building was

employed in interstate commerce).

     Because     it    was    not    clear     and   obvious      that     the     record

evidence   did   not    provide      a   factual     basis    for    Major’s       guilty

plea, the district court did not plainly err when it accepted

Major’s plea.



                                         III.

     Counsel     for   Major       included     in   his   initial        brief,    filed

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

additional issue as to whether the district court erred when it

sentenced Major to 180 months in prison.                     However, counsel did

not argue that issue.             Indeed, he ultimately concluded that the

argument had no merit.            We agree.

     We have reviewed the record and find that Major’s sentence

is both procedurally sound and substantively reasonable.                             The

district   court       properly       calculated       the     Guidelines          range,

considered that range in conjunction with the factors set forth

in 18 U.S.C. § 3553(a) (2000), and determined an appropriate

sentence within the Guidelines range.                  Applying the presumption

of reasonableness afforded sentences within the Guidelines range

                                          10
and   finding   that   Major   failed    to   rebut   that   presumption   on

appeal, we conclude that his 180-month sentence is reasonable.

See Rita v. United States, 127 S. Ct. 2456, 2462-69 (2007);

United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008).



                                   IV.

      For the foregoing reasons, the judgment of the district

court is

                                                                  AFFIRMED.




                                    11
