United States v. Burton , 359 F. App'x 430 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4380
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DEMARC T. BURTON,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:08-cr-00198-REP-2)
Submitted: November 20, 2009 Decided: January 4, 2010
Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Edwin F. Brooks, EDWIN F. BROOKS, LLC, Richmond, Virginia, for
Appellant. Dana J. Boente, United States Attorney, Michael A.
Jagels, Special Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Demarc T. Burton pled guilty pursuant to a plea
agreement to six separate felony counts of possession with
intent to distribute cocaine hydrochloride and marijuana,
conspiracy to possess with intent to distribute cocaine
hydrochloride and marijuana, possession of oxycodone, and
possession of a firearm as a convicted felon. Burton
subsequently moved to withdraw his guilty plea, and the district
court denied his motion. At sentencing, Burton objected to the
presentence investigation report (“PSR”), asserting that he
should be given a mitigating role adjustment and that he should
not receive an enhancement for possession of a firearm with an
obliterated serial number. The district court denied both
objections and sentenced Burton to 151 months in prison. On
appeal, Burton contends that the district court erred in denying
his motion to withdraw his guilty plea and his objections to the
PSR. Finding no error, we affirm.
Burton first challenges the district court’s denial of
his motion to withdraw his guilty plea, alleging that he did not
knowingly and voluntarily enter his plea. Burton claims that he
was not informed fully about certain mitigating evidence or the
existence of a motion to continue filed by his counsel, and that
his responses to the inquiries at the Fed. R. Crim. P. 11
hearing were given at the direction of counsel.
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This court reviews a district court’s denial of a
motion to withdraw a guilty plea for abuse of discretion. See
United States v. Dyess, 478 F.3d 224, 237 (4th Cir. 2007). The
defendant bears the burden of demonstrating “a fair and just
reason for requesting the withdrawal.” Fed. R. Crim. P.
11(d)(2)(B). A “fair and just” reason “is one that essentially
challenges . . . the fairness of the Rule 11 proceeding.”
United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992).
When determining whether a defendant has articulated a
fair and just reason, this court looks to six factors:
(1) whether the defendant has offered credible
evidence that his plea was not knowing or not
voluntary, (2) whether the defendant has credibly
asserted his legal innocence, (3) whether there has
been a delay between the entering of the plea and the
filing of the motion, (4) whether defendant has had
close assistance of competent counsel, (5) whether
withdrawal will cause prejudice to the government, and
(6) whether it will inconvenience the court and waste
judicial resources.
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991); see
also United States v. Sparks, 67 F.3d 1145, 1154 (4th Cir. 1995)
(explaining that not all factors are of equal weight, and that
“[t]he factors that speak most straightforwardly to the question
whether the movant has a fair and just reason to upset settled
systemic expectations by withdrawing her plea are the first,
second, and fourth”). However, “[t]he most important
consideration in resolving a motion to withdraw a guilty plea is
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an evaluation of the Rule 11 colloquy at which the guilty plea
was accepted.” United States v. Bowman, 348 F.3d 408, 414 (4th
Cir. 2003). “[A] properly conducted Rule 11 guilty plea
colloquy leaves a defendant with a very limited basis upon which
to have his plea withdrawn.” Id. Where a Rule 11 hearing is
properly conducted, it raises “a strong presumption that the
plea is final and binding.” Lambey, 974 F.2d at 1394.
A review of the record shows that, aside from Burton’s
self-serving statements, there is nothing to indicate that his
plea was not knowing or voluntary. At a hearing on the motion
to withdraw, Burton’s former counsel testified that he had
advised Burton about the relevant mitigating evidence. The
district court made a credibility determination and chose to
believe the attorney’s testimony over Burton’s. Moreover, at
the plea hearing, after being informed that if he were
untruthful at the hearing he would be subject to perjury charges
and that he would be bound by the statements he made, Burton
stated that he had discussed everything he needed to with his
attorney, that he was satisfied with his attorney’s services,
that everything in the statement of facts was correct, and that
he was pleading guilty because he was, in fact, guilty of those
charges. These assertions may not easily be repudiated.
Lambey, 974 F.2d at 1395.
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Burton also failed to credibly assert his innocence,
and made no more than conclusory allegations that he was not
guilty of any of the charges. The record, including Burton’s
statements at the Rule 11 hearing, also flatly refutes Burton’s
contention that he did not receive the close assistance of
competent counsel. Accordingly, we conclude that the district
court did not abuse its discretion by denying Burton’s motion to
withdraw his guilty plea.
Burton also challenges the district court’s denial of
his objections to the PSR. First, Burton argues that he should
have received a mitigating role adjustment because the evidence
pointed only to his alleged co-conspirator as a drug trafficker.
This court reviews the district court’s determination of a
defendant’s role in a criminal offense for clear error. United
States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002). Under
§ 3B1.2 of the Sentencing Guidelines Manual, a defendant’s
offense level may be decreased by four levels if he was “a
minimal participant in any criminal activity,” two levels if he
was a minor participant, and three levels if his conduct falls
between minimal and minor participation. U.S. Sentencing
Guidelines Manual (“USSG”) § 3B1.2 (2008). A minimal
participant is “substantially less culpable than the average
participant,” such as where a defendant lacks “knowledge or
understanding of the scope and structure of the enterprise and
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of the activities of others.” USSG § 3B1.2 cmt. nn.3(A), 4.
This adjustment, however, is intended to be used infrequently.
USSG § 3B1.2 cmt. n.4. A minor participant is one who “is less
culpable than most other participants, but whose role could not
be described as minimal.” USSG § 3B1.2 cmt. n.5. A defendant
bears the burden of proving that he is entitled to a mitigating
role adjustment by a preponderance of evidence. United
States v. Pratt, 239 F.3d 640, 645 (4th Cir. 2001). The
relevant inquiry for the court in making this determination not
only compares “the defendant’s culpability to that of other
participants,” but also measures the individual acts of each
participant and the “relative culpability against the elements
of the offense of conviction.” United States v. Reavis, 48 F.3d
763, 769 (4th Cir. 1995) (internal quotation marks omitted).
The district court found that Burton’s arguments in
favor of the adjustment were no more than an attempt to
relitigate the motion to withdraw the guilty plea, and directly
contradicted the Statement of Facts Burton signed. As the court
correctly noted, the Statement of Facts showed Burton’s
awareness of all the drugs and the firearms, contained an
admission of a prior connection with his co-conspirator and the
recovered firearms, and showed him to be an active participant
in the offenses of conviction. Thus, the district court did not
clearly err in refusing to award a mitigating role adjustment.
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Burton also asserts that the district court erred in
applying an enhancement for possession of a firearm with an
obliterated serial number because he had no knowledge of the
weapons or the obliterated serial number. The Guidelines
provide for a four-level enhancement if a firearm had an altered
or obliterated serial number. USSG § 2K2.1(b)(4). The
accompanying commentary specifically states that the enhancement
applies “regardless of whether the defendant knew or had reason
to believe that the firearm . . . had an altered or obliterated
serial number.” USSG § 2K2.1(b)(4) cmt. n.8(B); see also United
States v. Statham, 581 F.3d 548, 553 (7th Cir. 2009) (stating
that the defendant need not have known that the serial numbers
had been removed from the weapons for the enhancement to apply);
United States v. Brown, 514 F.3d 256, 269 (2d Cir. 2008)
(finding that the strict liability nature of this provision
reasonably imposes the burden on the felon to ensure the number
is not obliterated, and that such a burden does not violate due
process); cf. United States v. Mobley, 956 F.2d 450, 452-53
(3d Cir. 1992) (finding that the language of the enhancement
contained no scienter requirement, and no such requirement would
be read into the provision). Burton admitted in the Statement
of Facts that he possessed a handgun with an illegible serial
number, and as a result, the district court did not err in
applying the enhancement to Burton’s sentence.
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Accordingly, we affirm the district court’s judgment.
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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