The appellant has failed to satisfy his extremely high burden to prove that he would not have pleaded guilty if, during his Rule 11 plea colloquy, the magistrate judge had advised him of his potential exposure to a 15-year mandatory minimum sentence under the Armed Career Criminal Act.
This conclusion is required by this court’s decision in United States v. Massenburg, 564 F.3d 337 (4th Cir. 2009), which requires a defendant on plain error review to affirmatively show a reasonable probability that he would not have pleaded guilty if he had been correctly advised of his sentencing exposure – irrespective of the extent of the sentencing court’s error. The defendant is held to this standard even though the Rule 11 error committed by the district court here left him in the dark regarding one of the most critical considerations in the guilty plea calculus: his sentencing exposure. Nevertheless, this court is bound by Massenburg and must hold that the appellant failed to satisfy his evidentiary burden.
Affirmed. Judge Gregory and Judge Floyd both wrote concurring opinions.