                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-4756



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


SANTANA JADE CLINE,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:07-cr-00133-GBL)


Submitted:   June 10, 2008                 Decided:   July 25, 2008


Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Samuel W. Meekins, Jr., WOLCOTT, RIVERS & GATES, P.C., Virginia
Beach, Virginia, for Appellant.    Chuck Rosenberg, United States
Attorney, Stephanie Bibighaus Hammerstrom, Assistant United States
Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          Santana   Jade   Cline    appeals   from   her   conviction   for

trafficking in false authentication features for use in a false

identification document, in violation of 18 U.S.C.A. § 1028(a)(8),

(b)(2)(A), and (c)(3)(B) (West 2000 & Supp. 2008).         Cline contends

the district court abused its discretion in denying her motion to

withdraw her guilty plea.          Because our review of the record

discloses no reversible error, we affirm.

          After a guilty plea has been entered, a defendant may

withdraw the plea only if she can show a “fair and just reason” for

withdrawal.   Fed. R. Crim. P. 11(d)(2)(B).      This court reviews the

district court’s denial of a motion to withdraw a guilty plea for

abuse of discretion. United States v. Bowman, 348 F.3d 408, 413-14

(4th Cir. 2003). When considering whether to permit a defendant to

withdraw a guilty plea, a district court must evaluate:

     (1) whether the defendant has offered credible evidence
     that [her] plea was not knowing or not voluntary
     (2) whether the defendant has credibly asserted [her]
     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).

          Although all of these factors are to be given appropriate

weight, the most important consideration is the first - whether the

plea was knowing and voluntary.      To determine this, the court must


                                   -2-
assess whether the Rule 11 colloquy was properly conducted and the

plea was both counseled and voluntary.       See Bowman, 348 F.3d at

413-14.     Cline claims her Rule 11 proceeding was fatally flawed

because the stipulated facts included in her plea agreement were

not   sufficient   to   constitute   a   violation    of   18   U.S.C.A.

§ 1028(a)(8).

            In evaluating the first Moore factor, this court closely

scrutinizes the plea colloquy and attaches a strong presumption

that the plea is final and binding if the Rule 11 proceeding was

adequate.    United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir.

1992).    “Before entering judgment on a guilty plea, the court must

determine that there is a factual basis for the plea.”          Fed. R.

Crim. P. 11(b)(3). A district court is not required to “replicate”

a trial, and need only to be “subjectively satisfied that there is

a sufficient factual basis for a conclusion that the defendant

committed all of the elements of the offense.”        United States v.

Mitchell, 104 F.3d 649, 652 (4th Cir. 1997).         The district court

possesses wide discretion in making such a determination and may

rely on any evidence in the record to conclude that a sufficient

factual basis exists. Id.; United States v. DeFusco, 949 F.2d 114,

120 (4th Cir. 1991).

            During the Rule 11 hearing, the district court noted that

the plea agreement included a Statement of Facts, which Cline

stipulated were correct. In the Statement of Facts, Cline conceded


                                 -3-
that although the license in question contained the disclaimer “NOT

A GOVERNMENT DOCUMENT” on the back, the New York Department of

Motor Vehicles (“New York DMV”) had concluded that the “format,

layout and features of the card looked similar to a genuinely-

issued New York state license.”                   The card contained a number of

features that the New York DMV uses to determine whether a license

is counterfeit, including a New York state seal, color blending,

and bar codes.          The New York DMV concluded these features were

false authentication features, “as they appeared to be genuine but

were not.”

             While Cline now contends the disclaimer on the license

negated any appearance of issuance by a state authority, her claim

is merely an attempt to refute her admissions at the Rule 11

hearing.         The   issue    of   the    disclaimer       was   addressed   in   the

Statement of Facts, where Cline conceded that in spite of the

disclaimer, the New York DMV had concluded the license “looked

similar     to    a    genuinely-issued       New    York       state   license.”    By

conceding    this       fact,   Cline      provided    the      district   court    with

adequate evidence to conclude the licence qualified as a “false

identification         document,”     pursuant       to     §    1028(d)(4),   as   its

appearance was sufficiently similar to a genuine New York state

license.1        The district court was entitled to rely on Cline’s


     1
      Pursuant to 18 U.S.C.A. § 1028(a)(8), the evidence must
demonstrate that Cline “knowingly traffic[ked] in false or actual
authentication features for use in false identification documents

                                            -4-
concession on this point, and Cline cannot be permitted to simply

retract an admission made under oath at the Rule 11 hearing.                    See

Bowman, 348 F.3d at 417.

            Cline also contends that she could not have knowingly and

voluntarily pleaded guilty to a violation of 18 U.S.C.A. § 1028(a)

because it is unconstitutionally overbroad and vague.                      Because

Cline    raised   no    challenge    before     the     district   court   to   the

constitutionality of the statute, her claims are reviewed for plain

error.    Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.

725,     731-32     (1993).        Cline      asserts       the   definitions    of

“authentication feature,” pursuant to § 1028(d)(1), and “false

authentication         feature,”    pursuant       to   §    1028(d)(5)(C),     are

unconstitutionally overbroad, as they could be interpreted to allow

prosecution       of    private     clubs     or    organizations      that     use

authentication features in their identification cards.                        Cline

further contends § 1028(d)(5)(C) is unconstitutionally vague, as

the statute “fails to define the criminal offense with sufficient

definiteness that ordinary people can understand what conduct is

prohibited.”

            While      Cline   raises   a     facial     challenge    to   various

subsections of 18 U.S.C.A. § 1028, claims of statutory vagueness


. . . or means of identification.” The term “false identification
document” is defined as a “document of a type intended or commonly
accepted for purposes of identification of individuals that . . .
appears to be issued by or under the authority of . . . a State.”
18 U.S.C.A. § 1028(d)(4)(B).

                                        -5-
that do not implicate the First Amendment “must be examined in the

light of the facts of the case at hand.”         United States v. Sun, 278

F.3d 302, 309 (4th Cir. 2002) (quoting United States v. Mazurie,

419 U.S. 544, 550 (1975)).         Furthermore, outside of the limited

context of the First Amendment, a criminal statute may not be

attacked as overbroad.       See Schall v. Martin, 467 U.S. 253, 268

n.18 (1984); United States v. Morison, 844 F.2d 1057, 1075 (4th

Cir. 1988).       Cline attempts to present her claim as a First

Amendment challenge by asserting the statute would have a chilling

effect   on    the   association   rights   of   organizations     that   use

identification cards with authentication features similar to those

employed in her cards.        However, Cline fails to recognize that

prosecution      under   §   1028(a)(8)     covers    only   the    use    of

authentication features in documentation that appears to be issued

by a governmental entity.2

              Thus, because no First Amendment freedom is affected,

Cline’s overbreadth claim must fail.         Further, Cline’s vagueness

attack on § 1028(a)(8) is confined to “the facts of the case at

hand.”   Sun, 278 F.3d at 309.        The court’s review is therefore

limited to whether Cline herself had fair notice that the statute


     2
      Under § 1028(d)(1), an “authentication feature” is defined as
a feature used by the “issuing authority” to determine whether the
document is counterfeit. Pursuant to § 1028(d)(6), an “issuing
authority” is limited specifically to governmental entities. See
also 18 U.S.C.A. § 1028(d)(4) (defining “false identification
document” as a false version of a document used for identification
that appears to be issued by a governmental agency).

                                    -6-
proscribed her conduct.         See United States v. Hsu, 364 F.3d 192,

196 (4th Cir. 2004).          Citing § 1028(d)(5)(C), Cline contends the

term       “false   authentication   feature”        is   not   defined    so   that

“ordinary      people   can   understand      what    conduct    is   prohibited,”

thereby encouraging “arbitrary and discriminatory enforcement.”

However, we find that, because all of the terms employed in

§ 1028(a) are specifically defined under § 1028(d), the language of

the statute prevents arbitrary enforcement and provided adequate

notice of the wrongfulness of Cline’s conduct.                  See United States

v. Klecker, 348 F.3d 69, 71 (4th Cir. 2003).

               In addition, Cline conceded in the Statement of Facts

included in her plea agreement that all of her actions were

“knowing      and   deliberate,   and   were    not       committed   by   mistake,

accident, or other innocent reason.”3           Cline also admitted that she

supplied order forms to her customers requiring them to sign a

disclaimer certifying that they were not law enforcement agents.

Therefore, we hold that the language of 18 U.S.C.A. § 1028(a)(8)

was not unconstitutionally vague as applied to Cline. Accordingly,

we find that Cline has offered no credible evidence that her plea

was not knowing and voluntary.




       3
      Pursuant to § 1028(a)(8), a defendant must “knowingly
traffic[]” in false or actual authentication features for use in
false identification documents. See Vill. of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982) (scienter
requirement may mitigate vagueness of statute).

                                        -7-
             Cline next asserts, in regard to the second Moore factor,

that the district court erred in finding she had not asserted her

legal innocence.     In attempting to withdraw from a guilty plea, a

defendant is not required to provide conclusive proof of innocence;

however, the defendant’s credible assertion of her legal innocence

is one of the factors the district court must consider.       Moore, 931

F.2d at 248.    Cline claims that, while she may have been unclear in

expressing her concerns about the plea, she sufficiently asserted

she was not guilty of the charge.       We disagree.   At the hearing on

her motion to withdraw the plea, Cline made a number of allegations

about the performance of her attorney and requested new counsel.

However, Cline made no clear statement claiming innocence of the

charged offense.      While Cline expressed a desire to proceed to

trial and noted that she had contacted another attorney who felt

she had a “triable case,” she never stated she was innocent of the

charge under § 1028(a)(8), only that she had “enough proof . . .

not [to] get convicted of that.”           Furthermore, even assuming

Cline’s statements could be held to constitute an assertion of

innocence, she has not demonstrated that her assertions were

credible.4     See United States v. Sparks, 67 F.3d 1145, 1153 (4th


     4
      While Cline notes she was denied an acceptance of
responsibility reduction even after the district court held that
she had not asserted a claim of legal innocence, the fact that a
defendant has entered a guilty plea does not entitle her to that
adjustment “as a matter of right.”    U.S. Sentencing Guidelines
Manual (“USSG”) § 3E1.1, comment. (n.3) (2006). A defendant who
falsely denies or frivolously contests her relevant conduct has

                                  -8-
Cir. 1995). Accordingly, the district court did not err in finding

that Cline made no credible assertion of innocence.

            The third factor examined by the district court is

“whether there has been a delay between the entering of the plea

and the filing of the motion.”           Moore, 931 F.2d at 248.           The

district court found a delay between the entry of Cline’s plea and

the motion to withdraw her plea, noting she raised the matter on

“the eve of sentencing,” when the case was no longer ready for

trial.    While Cline concedes there was a delay, she contends this

was due to her continuing efforts to obtain new representation.

However, Cline’s motion to appoint new counsel was filed more than

two months after her plea hearing.         The delay in this case was

significant, as the motion to withdraw the plea was filed nearly

three months after Cline’s Rule 11 hearing and only three days

before her sentencing hearing.           See Moore, 931 F.2d at 249.

Accordingly, this factor does not weigh in Cline’s favor.

            The fourth Moore factor is whether the defendant had

close    assistance   of   competent   counsel.   931   F.2d   at   248.    A

defendant must demonstrate that counsel’s performance fell below an

objective standard of reasonableness and that, in the absence of



“acted in a manner inconsistent with acceptance of responsibility.”
USSG § 3E1.1, comment. (n.1(a)). Although Cline did not make a
credible claim of innocence in support of her motion to withdraw
her plea, the district court found she had still failed to fully
accept the illegality of her enterprise. Accordingly, there was no
incongruity in the district court’s rulings.

                                   -9-
counsel’s errors, it was reasonably probable the defendant would

not have pled guilty and would have proceeded to trial.             Bowman,

348 F.3d at 416 (citations omitted).          On appeal, Cline contends

that her counsel failed to challenge the constitutionality of

§ 1028(a)(8), never inspected a large number of documents she gave

him, and merely reviewed the charges and possible mandatory minimum

sentence before convincing Cline to accept the plea agreement.

However, as we have held, the constitutional challenge lacked

merit,    and   Cline   provided   no   evidence   to   support   her   other

allegations.     Furthermore, Cline’s claims are contradicted by her

sworn statements at the Rule 11 hearing, during which she stated

she had sufficient time with her attorney to review her case and

her plea agreement and was satisfied with his efforts on her

behalf.   See United States v. Ubakanma, 215 F.3d 421, 425 (4th Cir.

2000).    Therefore, the district court properly found this factor

did not weigh in Cline’s favor.

            The remaining two Moore factors are whether withdrawal

would prejudice the Government or inconvenience the court and waste

judicial resources.      931 F.2d at 248.    While Cline notes there was

little evidence in the record regarding these factors, the lack of

demonstrated prejudice is not dispositive.          See id. at 249.     Even

if these factors weighed in Cline’s favor, they are not enough to

outweigh the countervailing factors that militate against granting

the motion to withdraw her plea.           See Sparks, 67 F.3d at 1154.


                                    -10-
Therefore, we find the district court properly assessed the Moore

factors and that its decision to deny Cline’s motion to withdraw

her guilty plea was not an abuse of discretion.

           Accordingly, we affirm the judgment of the district

court.   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 in the decisional process.



                                                          AFFIRMED




                                -11-
