                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-4630


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

OSCAR SILVA MARTINEZ,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:15-cr-00083-NCT-3)


Submitted:   July 28, 2016                 Decided:   August 10, 2016


Before WILKINSON, MOTZ, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jenna Turner Blue, BLUE STEPHENS & FELLERS, LLP, Raleigh, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Randall S. Galyon, Assistant United States Attorney, Elissa
Hachmeister, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Oscar Silva Martinez appeals his conviction, pursuant to a

guilty plea, for conspiracy to distribute cocaine hydrochloride,

in    violation    of     21    U.S.C.       §§ 841(b)(1)(C),             846        (2012).        On

appeal,     Martinez       argues       that         the     district      court          erred     in

accepting    his    guilty       plea       without         finding      that    the       plea   was

supported by a sufficient factual basis.                          We affirm.

       Because Martinez did not seek to withdraw his guilty plea,

“any error in the Rule 11 hearing is reviewed only for plain

error.”     United States v. Williams, 811 F.3d 621, 622 (4th Cir.

2016).      “In    order        to   satisfy          the    plain       error       standard      [a

defendant] must show: (1) an error was made; (2) the error is

plain;    and    (3)     the    error       affects         [his]    substantial           rights.”

United    States v.       Massenburg,         564      F.3d       337,    342-43          (4th    Cir.

2009).      In    the    context       of    a       Rule    11     appeal,      a    defendant’s

substantial      rights        are   affected         when     there      is     “a       reasonable

probability that, but for the error, he would not have entered

the   plea.”       Id.    at     343    (quoting           United     States         v.   Dominguez

Benitez, 542 U.S. 74, 83 (2004)).

       Prior to “entering judgment on a guilty plea, the court

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

Fed. R. Crim. P. 11(b)(3).                    This rule is “intended to ensure

that the court make clear exactly what a defendant admits to,

and    whether     those        admissions            are     factually         sufficient         to

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constitute the alleged crime.”                       United States v. Mastrapa, 509

F.3d       652,    659-60      (4th     Cir.    2007)        (internal   quotation     marks

omitted).

       The district court failed to find that a sufficient factual

basis supported Martinez’s guilty plea.                         The court withheld such

a finding at the plea hearing, and failed to address the issue

at Martinez’s sentencing.                 Thus, the court erred in failing to

find that Martinez’s guilty plea was supported by an independent

basis in fact containing each of the elements of the offenses,

and that error was plain.

       However,          we    conclude        that    the     error     did   not   affect

Martinez’s         substantial        rights.          Although      Martinez    initially

denied agreeing to purchase five kilograms of cocaine, the facts

set forth in the presentence report (PSR), to which Martinez

withdrew his objection, show that he asked a coconspirator to

purchase five kilograms of cocaine from a confidential informant

on his behalf.                Moreover, the PSR stated that Martinez would

ultimately          approve       any     drug        purchase,      demonstrating      that

Martinez          was    deeply       involved         in,     and   critical    to,    the

conspiracy.             These facts establish that Martinez knew of the

drug conspiracy and actively participated in that conspiracy. *


       *
       To convict Martinez for conspiracy, the Government would
have to prove: “(1) an agreement between two or more persons to
engage in conduct that violates a federal drug law; (2) the
(Continued)
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Thus, the district court could have found that a factual basis

existed from the facts summarized in the PSR.                      See United States

v.    Martinez,     277   F.3d     517,   531-32       (4th    Cir.   2002)       (holding

district court may consider anything that appears on record,

including facts in PSR, in finding factual basis).

       Furthermore, Martinez’s admissions during the guilty plea

colloquy were sufficient to support his plea.                      Although Martinez

denied     making     a   deal     with     the       confidential     informant,       he

admitted     that    he   was     present       at,    and    participated        in,   the

meeting between a coconspirator and the confidential informant,

and   that   he     agreed   to    assist    his      coconspirator        in   procuring

and/or distributing cocaine.                These admissions were sufficient

to provide a factual basis for Martinez’s guilty plea.                            Because

there was a sufficient factual basis to support Martinez’s plea,

his    substantial        rights    were        not     affected      by    the    error.

Massenburg, 564 F.3d at 343.

       Accordingly, we affirm Martinez’s conviction.                        We dispense

with oral argument because the facts and legal contentions are




defendant’s knowledge of 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).



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adequately   presented   in   the   materials   before   this   court   and

argument would not aid the decisional process.

                                                                 AFFIRMED




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