US v. Lorenzo Leak, Jr.

Filing 920090406

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4914

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LORENZO LEAK, JR., Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. John Preston Bailey, Chief District Judge. (3:07-cr-00081-JPB-DJJ-1)

Submitted:

March 26, 2009

Decided:

April 6, 2009

Before GREGORY, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Antoini M. Jones, GIBSON, JONES & ASSOCIATES, LLP, Riverdale, Maryland, for Appellant. Sharon L. Potter, United States Attorney, Paul T. Camilletti, Assistant United States Attorney, Martinsburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Lorenzo possession of Leak, Jr., pled in guilty to one of count 18 of

child

pornography, as

violation by the

U.S.C. Child

§ 2252A(a)(5)(A)

(2006),

amended

Effective

Pornography Prosecution Act of 2007, Pub. L. No. 110-358, 122 Stat. 4001. The district court sentenced Leak to seventy

months' imprisonment. On appeal,

Leak timely appealed. Leak challenges the district court's

acceptance of his guilty plea.

Specifically, Leak asserts that

the district court erred in finding a factual basis to support his plea. Leak court. did This not seek to withdraw his plea his in the

district

court

therefore

reviews

arguments

under the plain error standard. F.3d 652, 657 (4th Cir. 2007).

United States v. Mastrapa, 509 To succeed on this claim, Leak

must demonstrate: (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, 732-34 (1993). conditions are satisfied, we may exercise

Even when these discretion to

our

notice the error only if it "seriously affects the fairness, integrity or public reputation of judicial proceedings." 736 (internal quotation marks and alteration omitted). Prior court plea." must to "entering that judgment is a on a guilty plea, for the the Id. at

determine

there

factual

basis

Fed. R. Crim. P. 11(b)(3). 2

This "ensures that the court

make clear exactly what a defendant admits to, and whether those admissions are factually sufficient to constitute the alleged crime." 1991). United States v. DeFusco, 949 F.2d 114, 120 (4th Cir. There is no error in the acceptance of a plea "so long

as the district court could reasonably determine that there was a sufficient factual basis." F.3d 517, 531 (4th Cir. United States v. Martinez, 277 The factual basis may be

2002).

supported by anything in the record.

DeFusco, 949 F.2d at 120.

Our review of the record convinces us that the district court did not err in concluding that an adequate factual basis was established to support Leak's plea. Accordingly, we affirm the district court's judgment. We deny the Government's motion to dismiss the appeal on wavier grounds because the issue raised on appeal is not within the scope of the waiver. See United States v. Blick, 408 F.3d 162,

168 (4th Cir. 2005) ("[W]e will enforce [a] waiver to preclude a defendant from appealing a specific issue if the record

establishes that the waiver is valid and that the issue being appealed is within the scope of the waiver."). oral argument because in the the facts and legal before We dispense with contentions the court are and

adequately

presented

materials

argument would not aid the decisional process. AFFIRMED

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