United States v. Burton

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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