The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5042
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HORACE LINTON BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge.
(8:06-cr-00140-PJM)
Submitted: December 14, 2007 Decided: January 10, 2008
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Susan L. Ferguson, Burbank, California, for Appellant. Rod J.
Rosenstein, United States Attorney, Stacy Dawson Belf, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Horace L. Brown appeals his conviction and sentence for
possession of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B) (2000). Brown pleaded guilty to the single
offense with which he was charged and was sentenced to forty-eight
months’ incarceration. On appeal, Brown contends the district
court abused its discretion in denying his motion to withdraw his
guilty plea, violated his due process rights by prohibiting a
witness from testifying in support of his motion to withdraw, and
further erred by imposing a sentence enhancement for obstruction of
justice. Finding no error, we affirm.
This court reviews the district court’s refusal to allow
a defendant to withdraw a guilty plea for abuse of discretion.
United States v. Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996). “A
defendant has no absolute right to withdraw a guilty plea, and the
district court has discretion to decide whether a fair and just
reason exists upon which to grant a withdrawal.” United States v.
Bowman, 348 F.3d 408, 413 (4th Cir. 2003) (internal quotation marks
omitted). Under United States v. Moore, 931 F.2d 245, 248 (4th
Cir. 1991), a district court considers six factors in regard to
such a motion: (1) whether the defendant has offered credible
evidence that his plea was not knowing and voluntary; (2) whether
the defendant has credibly asserted his legal innocence; (3)
whether there was a delay between the entry of the plea and the
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filing of the motion; (4) whether the defendant had close
assistance of competent counsel; (5) whether withdrawal will cause
prejudice to the government; and (6) whether withdrawal will
inconvenience the court and waste judicial resources. Id. This
court closely scrutinizes the Rule 11 colloquy and attaches a
strong presumption that the plea is final and binding if the Rule
11 proceeding is adequate. United States v. Lambey, 974 F.2d 1389,
1394 (4th Cir. 1992).
At the Fed. R. Crim. P. 11 hearing, Brown agreed with the
Government’s recitation of the facts in his case, stated that he
was entering his plea voluntarily, and asserted that he was guilty
of the crime charged. Brown’s sworn statements at the Rule 11
hearing are presumed to be true. See Blackledge v. Allison, 431
U.S. 63, 73-74 (1977). When a defendant subsequently claims to
have lied during the Rule 11 colloquy, “he bears a heavy burden in
seeking to nullify the process.” United States v. Bowman, 348 F.3d
408, 417 (4th Cir. 2003). Brown has not identified any infirmity
in the Rule 11 hearing, as the record demonstrates that the
district court adequately informed him of his rights and the
charges he faced, inquired as to the voluntariness of his plea, and
determined that there was a sufficient factual basis for the plea.
Brown claims that he presented credible evidence of his
legal innocence and that the district court violated his due
process rights by preventing “C.W.,” who was twelve at the time of
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the events in question and had turned seventeen shortly before the
hearing, from testifying in support of Brown’s motion to withdraw
his guilty plea. Brown asserts that the district court should have
conducted a hearing to determine C.W.’s competency to testify
before accepting the guardian ad litem’s invocation of C.W.’s Fifth
Amendment rights, especially in light of the fact that C.W. had
indicated through counsel that he wished to testify and confess his
involvement.1
However, Brown has failed to demonstrate that the
district court erred by proceeding through counsel’s proffer of
C.W.’s admission rather than live testimony. First, while he
asserts that C.W. should have been allowed to take the stand, Brown
fails to identify any relevant testimony that was not presented to
the district court through the proffer. See Moore, 931 F.2d at
247-48. In rejecting Brown’s assertion of innocence, the district
court largely relied on the fact that Brown gave a detailed
admission of his involvement to the federal agents who questioned
him at his home in 2003. The court found that even if C.W. was
1
Brown also contends that the district court erred by
requiring “proof of innocence,” as he repeatedly asserts that
withdrawal should be “liberally granted.” However, the burden on
the defendant is to demonstrate to the satisfaction of the district
court that a fair and just reason supports his request to withdraw.
Moore, 931 F.2d at 248. Furthermore, while Brown is not required
to provide conclusive proof of innocence, a defendant’s credible
assertion of his legal innocence remains one of the six Moore
factors that the district court must consider in determining
whether to permit withdrawal of the plea. Id.
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somehow involved in using Brown’s computer and financial accounts
to download hundreds of pornographic images, Brown had failed to
put forth any explanation as to when he discovered the images on
his computer or how he was subsequently able to provide such a
detailed admission to the investigators.2 On appeal, Brown has
failed to demonstrate that the district court’s ruling in regard to
C.W.’s testimony in any way prejudiced his ability to assert his
legal innocence, as the court ultimately held that even if C.W.’s
account was taken into consideration, Brown still qualified as an
aider and abettor or joint possessor of the pornographic images.
Furthermore, while a defendant’s assertion of his legal
innocence is to be evaluated by the district court, it is only one
of six factors to be taken into consideration, with the most
important factor being the adequacy of the Rule 11 hearing. See
Lambey, 974 F.2d at 1394. Brown failed to demonstrate he did not
intelligently and voluntarily enter his plea. At the Rule 11
hearing, Brown agreed with the Government’s detailed recitation of
the facts and admitted he obtained child pornography from the
internet. Accordingly, Brown’s later assertions of innocence must
be considered alongside the presumption of truth granted to his
2
At the hearing, Brown was asked by the district court about
how and when he discovered the pornographic images on his computer;
however, Brown declined to provide any explanation, as counsel
stated only that “I suspect Mr. Brown came to discover what [C.W.]
was doing, and consequently, Mr. Brown was in the position of
speaking meaningfully to what was on that hard drive . . . when the
agents came to the home.”
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sworn statements made during the plea hearing. See Blackledge, 431
U.S. at 73-74. Given the strong presumption that the plea is final
and binding if the Rule 11 proceeding is adequate, Brown has failed
to demonstrate the court erred in its determination of the
remaining Moore factors. Therefore, we find no abuse of discretion
as to the district court’s denial of Brown’s motion to withdraw his
guilty plea.
Brown also challenges the district court’s enhancement of
his sentencing guidelines offense level for obstruction of justice.
Brown first contends that his Sixth Amendment rights were violated
because the findings of fact supporting the sentence enhancement
were not admitted to or proven beyond a reasonable doubt. However,
pursuant to the remedial portion of United States v. Booker, 543
U.S. 220 (2005), district courts will continue to make decisions
about sentencing factors on the preponderance of the evidence,
taking into account that the resulting Guidelines range is advisory
only. See United States v. Morris, 429 F.3d 65, 71 (4th Cir.
2005), cert. denied, 127 S. Ct. 121 (2006).
As to the district court’s obstruction of justice
determination, this court reviews findings of fact for clear error
and questions of law de novo. United States v. Green, 436 F.3d
449, 456 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).
Pursuant to U.S. Sentencing Guidelines Manual (“USSG”) § 3C1.1
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(2002),3 a two-level enhancement for obstruction of justice may be
imposed if the defendant:
willfully obstructed or impeded, or attempted to obstruct
or impede, the administration of justice during the
course of the investigation, prosecution, or sentencing
of the instant offense of conviction, and the obstructive
conduct related to the defendant’s offense of conviction
and any relevant conduct; or a closely related offense.
A defendant’s denial of guilt, other than a denial under oath that
constitutes perjury, is not an adequate basis for application of
§ 3C1.1, as the defendant should not be punished for the exercise
of a constitutional right. See USSG § 3C1.1, comment. (n.2).
However, a defendant cannot go beyond a mere denial of his guilt
and attempt to implicate another individual as responsible for the
criminal conduct. See United States v. Gormley, 201 F.3d 290, 294
(4th Cir. 2000).
While Brown did not testify in support of the motion to
withdraw his guilty plea, the proffer made by counsel on his behalf
went beyond a mere denial of guilt, as Brown contended that the
criminal acts were actually performed by a twelve-year—old boy.
See Gormley, 201 F.3d at 294. Additionally, the sentencing
enhancement was not predicated on a finding that Brown perjured
himself; rather, the district court’s determination was based on
the materially false statements put forth by Brown in his attempt
to implicate another individual. See USSG § 3C1.1, comment.
3
The parties stipulated that the 2002 version of the
Sentencing Guidelines applied.
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(n.4(f)). The district court held that Brown had directly
contradicted his own sworn testimony at the Rule 11 hearing and
that his attempt to declare his complete innocence at the expense
of a minor was “incredible.” Based on Brown’s sworn statements
during the Rule 11 plea colloquy and his subsequent implication of
another individual as the guilty party, we find the district
court’s factual findings were not clearly erroneous and adequately
supported a one-level enhancement for presenting materially false
information to the court.
Accordingly, we affirm Brown’s conviction and sentence.
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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