UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4495
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KRISTEN DOUGLAS WELTER,
Defendant - Appellant.
No. 13-4496
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KRISTEN DOUGLAS WELTER,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:12-cr-00123-WO-1; 1:12-cr-00399-
WO-1)
Submitted: May 30, 2014 Decided: June 16, 2014
Before NIEMEYER, KING, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant. Ripley Rand, United States Attorney,
Graham T. Green, Assistant United States Attorney, Winston-
Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Kristen Welter appeals the district court’s criminal
judgment sentencing him to eighty-eight months’ imprisonment
after he pled guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1) (2012), and to
possessing child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B) (2012). On appeal, Welter argues that the
district court abused its discretion when it denied his motion
to withdraw his guilty plea to the child pornography charge and
committed clear error when it applied a two-level enhancement
for obstruction of justice to his offense level. We affirm.
We review a district court’s denial of a motion to
withdraw a guilty plea for abuse of discretion. United States
v. Nicholson, 676 F.3d 376, 383 (4th Cir. 2012). “A defendant
has no absolute right to withdraw a guilty plea . . . .” Id. at
383-84 (internal quotation marks omitted). Instead, the
defendant bears the burden of “show[ing] a fair and just reason”
for withdrawing his guilty plea. Fed. R. Crim. P. 11(d)(2)(B);
Nicholson, 676 F.3d at 383.
We have outlined six factors that the district court
should evaluate to determine whether a defendant is entitled to
withdraw his guilty plea:
(1) whether the defendant has offered credible
evidence that his plea was not knowing or not
voluntary, (2) whether the defendant has credibly
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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).
While all the factors noted in Moore should be considered, the
key factor to determining whether a motion to withdraw should be
granted is whether the Fed. R. Crim. P. 11 hearing was properly
conducted. Nicholson, 676 F.3d at 384.
After a thorough review of the record, we conclude
that the district court complied with Rule 11 when Welter
entered his guilty plea. We hold that, in light of Welter’s
statements at the Rule 11 hearing, which “carry a strong
presumption of verity,” Blackledge v. Allison, 431 U.S. 63, 74
(1977), Welter’s plea was knowing and voluntary, and he has
failed to credibly assert his innocence. We also reject
Welter’s challenge to the district court’s conclusion that
Welter had the close assistance of counsel. Therefore, we
conclude that the district court did not abuse its discretion
when it denied Welter’s motion to withdraw his guilty plea.
Next, Welter argues that the district court improperly
applied a two-level enhancement to his offense level for
obstruction of justice. In assessing whether a sentencing court
correctly applied the Guidelines, the district court’s factual
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findings are reviewed for clear error and its legal conclusions
are reviewed de novo. United States v. Osborne, 514 F.3d 377,
387 (4th Cir. 2008). “Under [the] clear error standard, we will
reverse the district court’s [factual] finding only if we are
left with the definite and firm conviction that a mistake has
been committed.” United States v. Crawford, 734 F.3d 339, 342
(4th Cir. 2013) (internal quotation marks omitted), cert.
denied, 134 S. Ct. 1528 (2014).
The Guidelines provide for a two-level enhancement to the
defendant’s offense level:
If (1) the defendant willfully obstructed or impeded,
or attempted to obstruct or impede, the administration
of justice with respect to the investigation,
prosecution, or sentencing of the instant offense of
conviction, and (2) the obstructive conduct related to
(A) the defendant’s offense of conviction and any
relevant conduct; or (B) a closely related offense.
U.S. Sentencing Guidelines Manual (“USSG”) § 3C1.1 (2012). The
application notes state that “[o]bstructive conduct that
occurred prior to the start of the investigation of the instant
offense of conviction may be covered by this guideline if the
conduct was purposefully calculated, and likely, to thwart the
investigation or prosecution of the offense of conviction.”
USSG § 3C1.1 cmt. n.1. On appeal, Welter contends that the
district court clearly erred in its factual conclusion that a
letter he sent to his neighbor asking her to dispose of hard
drives containing images of child pornography was purposefully
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calculated to thwart an inchoate investigation into the offense.
While Welter’s argument may be plausible, the district court’s
conclusion was also permissible and therefore the court’s
decision to impose the enhancement was not clearly erroneous.
See Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)
(“Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.”)
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
this court and argument would not aid the decisional process.
AFFIRMED
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