                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-3882

U NITED STATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

R OBERT E. H OKE,
                                            Defendant-Appellant.


           Appeal from the United States District Court
                for the Southern District of Illinois.
          No. 4:06-cr-40058-JPG-1—J. Phil Gilbert, Judge.



       A RGUED A PRIL 7, 2009—D ECIDED JUNE 25, 2009




  Before P OSNER, R IPPLE and W OOD , Circuit Judges.
  R IPPLE, Circuit Judge. Robert Hoke was indicted for
the receipt and possession of child pornography in viola-
tion of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(a)(5)(B).
After the Government rested its case, Mr. Hoke pleaded
guilty to both counts. He later moved to withdraw his
guilty plea, but the district court denied his motion. The
court sentenced Mr. Hoke to 121 months’ imprisonment
and five years’ supervised release. In this appeal, Mr. Hoke
2                                              No. 08-3882

contends that the court abused its discretion by not
allowing him to withdraw his guilty plea. He also
claims that the district court denied him his right of
allocution in violation of Federal Rule of Criminal Pro-
cedure 32(i)(4)(A). For the reasons set forth in this
opinion, we affirm the judgment of the district court.


A. Motion to Withdraw Guilty Plea
                            1.
  On January 8, 2008, Mr. Hoke was charged with receipt
of child pornography and possession of child pornography.
A jury trial commenced on June 16, 2008, and the Gov-
ernment rested its case the following day. After Mr. Hoke
heard all of the evidence against him, he pleaded guilty
to both counts. Before accepting the plea, the district
court advised and questioned Mr. Hoke as required by
Rule 11(b)(1) of the Federal Rules of Criminal Procedure.
The district court placed Mr. Hoke under oath and ques-
tioned him to ensure that he understood English and
that he was satisfied with his representation. The court
went through each count of the indictment and, although
the Government already had presented its evidence
during its case-in-chief, required the prosecutor to state,
with respect to each count, the evidence upon which
the Government relied. The court also assured itself
that Mr. Hoke understood the length of the sentence
he could receive and the conditions governing his sub-
sequent release. The court also advised him of the
rights that he could exercise if he elected to proceed with
the trial. With regard to sentencing, the court told
No. 08-3882                                               3

Mr. Hoke that the United States Sentencing Guidelines
are advisory and that it would consider the Guidelines,
any statutory mandatory minimum and the factors enu-
merated under 18 U.S.C. § 3553(a). Throughout the
process, the court ensured that Mr. Hoke understood the
advice given to him. After verifying that no threats or
promises had been made to Mr. Hoke and determining
that his plea was a “free and voluntary act,” the court
accepted his guilty plea. R.94 at 8.
  On August 18, Mr. Hoke wrote a letter to the court
seeking to withdraw his plea of guilty. Two days later,
Mr. Hoke’s attorney moved to withdraw as counsel;
the district court granted the motion and appointed
new counsel. On October 1, Mr. Hoke moved to with-
draw his guilty plea under Federal Rule of Criminal
Procedure 11(d)(2)(B).
  At a subsequent hearing, Mr. Hoke maintained that
his plea was not made knowingly because he was
confused about the nature of the proceedings and
because he was innocent of the charges under a “technical
defense.” 1 Mr. Hoke claimed that his plea was coerced
by his former attorney and that the attorney had told
him that his computer expert could not testify. Mr. Hoke
also said that he had looked to his attorney for direction
on how to answer most of the court’s questions at the
plea hearing. By contrast, the former attorney testified
that he did not instruct Mr. Hoke how to answer the
questions and that, had they proceeded with the trial, he


1
  Mr. Hoke did not explain the nature of this “technical de-
fense” at his hearing.
4                                              No. 08-3882

would have called Mr. Hoke’s computer expert to testify.
The Government questioned Mr. Hoke, who admitted to
having no mental defects and to being clear-minded on
the day that he pleaded guilty.
  The court found that Mr. Hoke had not been prompted
by his attorney when he answered its questions and also
found that, during the hearing, Mr. Hoke had understood
the consequences of his actions when he pleaded guilty.
The court therefore denied his motion to withdraw
his plea.


                            2.
  We review the court’s denial of Mr. Hoke’s motion to
withdraw his guilty plea for an abuse of discretion. See
United States v. Bowlin, 534 F.3d 654, 659 (7th Cir. 2008).
Mr. Hoke submits that the court erred in denying his
motion to withdraw his guilty plea because he had a
valid technical defense, which his prior attorney had
failed to raise. He further maintains that he was “stressed
and confused about the various proceedings leading up
to the plea of guilty.” Appellant’s Br. 10.
  The district court did not abuse its discretion in
denying Mr. Hoke’s motion to withdraw his plea.
Mr. Hoke did not show “a fair and just reason for re-
questing the withdrawal.” United States v. Bryant, 557
F.3d 489, 495 (7th Cir. 2009) (quoting Fed. R. Crim. P.
11(d)(2)(B)). He claims that he is legally innocent because
of a “technical defense.” However, “claims of innocence
alone do not mandate permission to withdraw a plea,” but,
rather, must be substantiated by evidence. United States
No. 08-3882                                             5

v. Groll, 992 F.2d 755, 758 (7th Cir. 1993). Furthermore,
Mr. Hoke has not shown that, at the time of his plea,
he was unaware of the technical defense which he now
invokes. See Bryant, 557 F.3d at 495 (holding that the
district court’s denial of the defendant’s motion to with-
draw his plea was not an abuse of discretion because
the defendant did not present newly discovered
evidence relating to his factual guilt or innocence, and
he did not discover a new legal defense after he
pleaded guilty). Consequently, Mr. Hoke has not estab-
lished that a fair and just reason for withdrawal exists.
  Mr. Hoke claims that he was confused about the pro-
ceedings leading up to his plea of guilty. We have held,
however, that “[t]he only rational manner in which a
judge may determine whether a plea is knowingly and
voluntarily made, is to observe the defendant’s demeanor
and responses to the court’s questions and to rely on the
defendant’s sworn answers.” United States v. Ellison, 835
F.2d 687, 693 (7th Cir. 1987). The district court had the
opportunity to question and observe Mr. Hoke during
his motion to withdraw plea hearing; it did not find
that Mr. Hoke was confused or unaware of the nature
of his actions at that time. We therefore believe that the
court did not abuse its discretion in denying Mr. Hoke’s
motion to withdraw his guilty plea.


B. Right of Allocution
                            1.
  Mr. Hoke’s sentencing hearing was held on Novem-
ber 7, 2008. Prior to Mr. Hoke’s allocution, the court
6                                              No. 08-3882

addressed an objection raised by the Government regard-
ing the presentence investigation report (“PSR”). The
Government maintained that the PSR should have
advised a two-level enhancement for obstruction of
justice because, it alleged, Mr. Hoke had made false
statements during the hearing for his motion to with-
draw his guilty plea. The court stated that it was not
going to apply the obstruction of justice enhancement,
but told the Government that “even though it’s not ap-
plying the enhancement, [it] will be taking into account
his testimony when it issues its sentence, which will be
within the advisory guideline range. . . .” R.123 at 5.
  The court then explained its guidelines-range
findings and asked whether either side had any objec-
tions. Mr. Hoke’s attorney replied that he would be
objecting to the Guidelines as a whole, and he noted that
the court is not bound by the Guidelines. The court ac-
knowledged that the Guidelines are advisory and then
noted that it would consider “the [section] 3553(a) factors
as well as the advisory guidelines in issuing its decision
on the appropriate sentence.” Id. at 7. Mr. Hoke then
presented mitigating statements from several wit-
nesses, and his attorney argued that he should receive
the mandatory minimum sentence of sixty months.
  After the attorneys for both sides had spoken, the
court directed Mr. Hoke to stand, and asked: “Is there
anything you wish to say or offer in mitigation before
this Court imposes sentence?” Id. at 26. Mr. Hoke replied
that he had health problems. He admitted to looking
at adult pornography, but denied ever looking at child
No. 08-3882                                                7

pornography. The court then sentenced Mr. Hoke to 121
months’ imprisonment for Count 1 and 120 months’
imprisonment for Count 2, to run concurrently,
followed by five years of supervised release.


                             2.
  Because Mr. Hoke raised no objection regarding his
right of allocution at the district court level, we review
only for plain error. See United States v. Luepke, 495 F.3d
443, 446 (7th Cir. 2007); Fed. R. Crim. P. 52(b). “Plain
error review requires us to determine: (1) that error
occurred; (2) that the error was plain; and (3) that the
error affected the defendant’s substantial rights.” Luepke,
495 F.3d at 448. “If these criteria are met, we may
reverse, in an exercise of discretion, if we determine
that the error ‘seriously affects the fairness, integrity, or
public reputation of judicial proceedings.’ ” Id. (quoting
United States v. Simpson, 479 F.3d 492, 496 (7th Cir. 2007)).
  Mr. Hoke submits that the district court foreclosed
any possibility of a below-guidelines sentence, prior to
his opportunity to address the court, when it stated that
his sentence would be “within the advisory guideline
range.” R.123 at 5. Mr. Hoke therefore contends that
the court violated his right of allocution and maintains
that the violation was not cured when the court later
allowed him to present witnesses and to personally
address the court. See Luepke, 495 F.3d at 452; Fed. R.
Crim. P. 32(i)(4).
  Federal Rule of Criminal Procedure 32(i)(4)(A), which
codifies the common law right of allocution, states
8                                               No. 08-3882

that, prior to imposing a sentence, the court must
“address the defendant personally in order to permit the
defendant to speak or present any information to
mitigate the sentence.” In Green v. United States, 365
U.S. 301, 304 (1961) (plurality opinion), the Supreme
Court interpreted an earlier version of this rule and
held that a defendant must be afforded the opportunity
to personally address the court. The Court stated that
district courts should “unambiguously address them-
selves to the defendant” and “should leave no room
for doubt that the defendant has been issued a personal
invitation to speak prior to sentencing.” Id. at 305.
  We must consider the district court’s statement
regarding sentencing Mr. Hoke under the Guidelines in
the context in which it was made. During the sen-
tencing hearing, the Government objected to the PSR,
maintaining that Mr. Hoke should have received an
obstruction of justice enhancement for making false
statements. The court declined to apply the enhance-
ment and explained that it would “be taking into
account his testimony when it issues its sentence, which
will be within the advisory guideline range . . . .” R.123
at 5.
  When read in context, it is evident that the district court
was merely communicating that it would use the Guide-
lines as its baseline, as opposed to the elevated sentencing
range that the Government sought. After the court
stated its intent, Mr. Hoke’s attorney quickly noted that
he would be challenging the applicability of the Guide-
lines and stated that the court was not bound by them.
No. 08-3882                                                      9

The court agreed, noting that the Guidelines “are advi-
sory.” R.123 at 7. It further stated that it would be “consid-
ering [section] 3553(a) factors as well as the advisory
guidelines in issuing its decision on the appropriate
sentence.” Id. In this colloquy with counsel, the court
expressed clearly that it had not reached a conclusive
decision regarding Mr. Hoke’s sentence and that it
would consider the relevant sentencing factors and the
advisory nature of the Guidelines. The court, moreover,
gave Mr. Hoke an opportunity to present witnesses and
invited him to address the court. We conclude that the
court did not deny Mr. Hoke his right of allocution
and, therefore, did not commit plain error.2




2
   This case is not controlled by United States v. Luepke, 495 F.3d
443 (7th Cir. 2007). In Luepke, the district court announced a
specific sentence and committed the defendant to the Bureau
of Prisons prior to allocution. Id. at 445. After announcing the
sentence in “seemingly conclusive terms,” the court stated
“[b]efore imposing any sentence in this matter I will call upon
the defendant for those matters which he would like to bring
to the Court’s attention.” Id. (citation omitted, emphasis in
original). We held that the court had committed plain error
by imposing a sentence before affording the defendant an
opportunity to speak and observed that “the defendant had
little incentive to share his thoughts on the matter of a sen-
tence that he had every reason to believe had already been
decided.” Id. at 450.
10                                           No. 08-3882

                      Conclusion
  For the foregoing reasons, the judgment of the district
court is affirmed.
                                               A FFIRMED




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