UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4558
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TERRY LEON BLANKENSHIP,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. Thomas E. Johnston,
District Judge. (1:08-cr-00073-1)
Submitted: March 29, 2010 Decided: April 15, 2010
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Karen B. Schommer, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terry Leon Blankenship pled guilty pursuant to a plea
agreement to one count of possession of child pornography, in
violation of 18 U.S.C. § 2252A(a)(5)(B) & (b)(2) (2006). At the
conclusion of Blankenship’s plea hearing, the district court
found that Blankenship was competent to plead guilty, that his
plea was freely and voluntarily made, that Blankenship
understood the consequences of his guilty plea, and that a
factual basis existed for Blankenship’s plea. See Fed. R. Crim.
P. 11. Subsequently, the district court sentenced Blankenship
to 100 months’ imprisonment, which fell within Blankenship’s
advisory guidelines range. Blankenship timely noted his appeal.
On appeal, Blankenship contends that his guilty plea
was not supported by a factual basis and that the district court
erred in accepting his plea because he denied being guilty of
the offense. Blankenship failed to challenge the validity of
his guilty plea in the district court. Accordingly, his claims
on appeal are reviewed for plain error. United States v. Vonn,
535 U.S. 55, 61-62 (2002); United States v. General, 278 F.3d
389, 394 (4th Cir. 2002). To establish plain error, Blankenship
must demonstrate that: (1) there was error; (2) the error was
“plain;” and (3) the error affected his substantial rights.
United States v. Olano, 507 U.S. 725, 732 (1993). If the three
elements of this standard are met, this court may exercise its
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discretion to notice the error only if “the error seriously
affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” Id. (internal quotations omitted).
Blankenship fails to demonstrate any error by the district court
in accepting his guilty plea.
First, Blankenship’s plea was supported by a
stipulated factual basis signed by Blankenship, which
established the elements of the offense of conviction.
Blankenship’s stipulation was sufficient, in itself, to
establish a factual basis for his plea. See United States v.
DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). Moreover, during
Blankenship’s Rule 11 hearing, the Government restated the
stipulation, and in response to the district court’s questions,
Blankenship admitted that he had read the stipulation, that he
had signed the stipulation, and that he agreed with the facts in
the stipulation. Accordingly, Blankenship’s plea was supported
by a sufficient basis in fact.
Also, the district court did not err in accepting
Blankenship’s plea because, despite Blankenship’s isolated
denial at the conclusion of his Rule 11 hearing, Blankenship
knowingly and voluntarily pled guilty to Count Three. At the
conclusion of his Rule 11 hearing, Blankenship did state, “[n]o,
I didn’t actually do the crimes.” However, after consulting
with counsel, Blankenship reversed himself stating, “I take that
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back, Your Honor. Yes, I did.” When the district court asked
him why he initially denied responsibility, Blankenship stated,
“I’m not really sure, Your Honor, but I did put the images on
the computer, yes.”
The remainder of the Rule 11 transcript supports
Blankenship’s knowing and voluntary admission. Blankenship
testified during his Rule 11 hearing that he had reviewed his
plea agreement with his attorney, that he had sufficient time to
discuss his case with his attorney, and that his attorney had
answered all of his questions. The district court explained to
Blankenship the elements of the offense to which he was pleading
guilty, and the maximum penalties he faced by pleading guilty.
The district court then reviewed with Blankenship his various
trial rights that he was waiving by pleading guilty, and
Blankenship acknowledged that he understood his rights. The
district court then asked Blankenship, “[a]s to Count Three,
sir, how do you plead: guilty or not guilty?” To which,
Blankenship responded “guilty.” Blankenship’s plea was,
admittedly, voluntary and not the result of threats, coercion or
promises not contained in his plea agreement. Blankenship’s
isolated denial simply fails to establish any error by the
district court in accepting his guilty plea.
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Accordingly, we affirm the judgment of the district
court. We dispense with oral argument as 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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