                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-2450
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                            Delmarcus Deante Johnson

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                     for the District of Minnesota - St. Paul
                                 ____________

                           Submitted: February 15, 2013
                               Filed: June 3, 2013
                                 ____________

Before SMITH, MELLOY, and BENTON, Circuit Judges.
                           ____________

SMITH, Circuit Judge.

      Delmarcus Deante Johnson pleaded guilty pursuant to a plea agreement to one
count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B)
and (b)(2). Following entry of his guilty plea, Johnson moved to withdraw his plea.
The district court1 denied Johnson's motion to withdraw his plea. On appeal, he
argues that the district court failed to comply with Federal Rule of Criminal
Procedure 11(b)(3) because his guilty plea lacks a factual basis. Specifically, he
asserts that nothing in the record supports a finding that the video at issue was
"produced" using materials that moved in interstate commerce. See 18 U.S.C.
§ 2252(a)(4)(B). Additionally, he contends that the district court abused its discretion
in denying his motion to withdraw because he articulated a fair and just reason to
withdraw his plea. We affirm.

                                   I. Background
      Johnson was charged in a one-count indictment with possession of child
pornography, in violation of § 2252(a)(4)(B) and (b)(2). The indictment provided that
Johnson

      did knowingly possess one or more matters that contained a visual
      depiction which was produced using materials that had been mailed,
      shipped and transported in interstate commerce by any means, where the
      production of such visual depiction involved the use of [a] minor
      engaging in sexually explicit conduct and the visual depiction is of such
      conduct, including but not limited to the following digital image file:
      MOV01485.mpg, all in violation of Title 18, United States Code,
      Sections 2252(a)(4)(B) and 2252(b)(2).

(Emphasis added.)

       Johnson, representing himself, and with stand-by counsel, entered into a plea
agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) with the
government in which Johnson agreed to plead guilty to the offense. Paragraph 2 of
the plea agreement set forth the factual basis of the plea as follows:

      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.

                                          -2-
      The defendant agrees that in or about May 2010, in the State and District
      of Minnesota, he possessed a video which depicts him engaging in
      sexual intercourse with Minor A at a motel in the Minneapolis,
      Minnesota area. The defendant agrees that the video of the sex act was
      stored on a device that was manufactured outside of the state of
      Minnesota. Therefore, the defendant agrees that the image he possessed
      was stored on materials that had been mailed, shipped or transported
      in interstate commerce.

(Emphases added.)

      In ¶ 6 of the plea agreement, "the parties agree[d] pursuant to Fed. R. Crim. P.
11(c)(1)(C) that a sentence that does not exceed 36 months imprisonment[] is
appropriate after consideration of the sentencing factors set forth in 18 U.S.C.
§ 3553(a)." The government agreed to "seek a sentence of 36 months," while Johnson
reserved the right to "seek a lower sentence."

      At the change-of-plea hearing, the district court expressed its intent to accept
the plea agreement under Rule 11(c)(1)(C) and sentence Johnson to 36 months'
imprisonment or less. The government then reviewed the plea agreement with
Johnson. Johnson agreed that he was pleading guilty to "possession of child
pornography[,] in violation of 18 United States Code Sections 2252(a)(4)(B) and
2252(b)(2)." The government then reviewed the factual basis for the plea with
Johnson, and the following exchange occurred:

             MR. STEINKAMP [for the government]: Now, so here is what
      I'm going to ask you. On or about May of 2010, you possessed an
      electronic device that had on it a video, correct?

             THE DEFENDANT: Yes.




                                         -3-
      MR. STEINKAMP: And it was a video of you and your then
17-year-old girlfriend, who we've referred to in the plea agreement as
"Minor A", correct?

      THE DEFENDANT: Yes, sir.

     MR. STEINKAMP: And you know who I mean when I say
"Minor A"?

      THE DEFENDANT: Yes, sir.

      MR. STEINKAMP: I think we can say her initials are D.P.
without identifying her in the courtroom.

      THE DEFENDANT: Yes, sir.

      MR. STEINKAMP: But that's the person we're talking about?

      THE DEFENDANT: Yes, sir.

      MR. STEINKAMP: And that person was on the tape with you and
you—that tape shows you and Minor A engaging in a sexual act,
correct?

      THE DEFENDANT: Yes, sir.

     MR. STEINKAMP: And at the time you—that that was taken,
Minor A was under the age of 18, correct?

      THE DEFENDANT: Yes, sir.

      MR. STEINKAMP: She was—she could consensually have sex
under the laws of Minnesota, correct?

      THE DEFENDANT: Yes, sir.




                                 -4-
             MR. STEINKAMP: But you now know, and you didn't know then,
      that you could not videotape consensual sex between you and her under
      federal law, true?

             THE DEFENDANT: True.

             MR. STEINKAMP: You agree that you now know that the law
      says that you cannot do that?

             THE DEFENDANT: Yes, sir.

             MR. STEINKAMP: Okay. So, therefore, do you agree that you're
      guilty of that offense under federal law?

             THE DEFENDANT: Yes, sir.

            MR. STEINKAMP: Okay. Let me just make one other thing clear,
      your Honor.

             THE COURT: Certainly.

              MR. STEINKAMP: You agree that the camera that was—that
      stored this video was manufactured outside of Minnesota. It was likely
      made in probably an eastern country like Korea, Japan. You're not
      saying that that camera didn't move in interstate commerce. You think
      it did, right?

             THE DEFENDANT: Yes. Yes, sir.

(Emphases added.)

       During the hearing, the court advised Johnson that it "must be satisfied that
[Johnson's] decision to enter into this [plea] is a knowing, voluntary, conscious
decision on [his] part." The court explained that it had to satisfy itself that no one
threatened or promised Johnson anything in return for his guilty plea and that "[t]his


                                         -5-
is a voluntary decision on [Johnson's] part." Following the government's review of
the factual basis for the plea, the court reviewed with Johnson his constitutional
rights, including his right to proceed to trial on the charges against him. The court
explained that Johnson was foregoing those rights by pleading guilty, and Johnson
indicated that he understood. The court then asked Johnson's stand-by counsel
whether he was "satisfied that the decision that [Johnson] is making here today is a
voluntary, conscious decision on his part," and stand-by counsel replied, "Yes I do,
your Honor. I've had a chance to discuss this plea agreement, other plea agreements
with Mr. Johnson. I think he is intelligent, articulate. I think he understands the nature
of the plea agreement, the proceedings here in court today, and all the potential
ramifications." Stand-by counsel was not "aware of any reason [why the court] should
not accept the plea agreement."

       Before accepting Johnson's plea, the court inquired whether the government
was "satisfied that [it] ha[d] sufficient admissible evidence to sustain a conviction to
the charges in Count 1 of the Indictment if the matter did proceed to trial." The
government confirmed that it did have sufficient evidence to sustain the conviction.
After making sure that Johnson had no additional questions for the court or his stand-
by counsel, the court asked Johnson whether he was "prepared to proceed . . . with a
plea." Johnson responded that he was and then pleaded guilty to the charge. The court
accepted Johnson's guilty plea.

       Approximately one month after the change-of-plea hearing, Johnson filed his
first motion to withdraw his guilty plea, contending that his plea was coerced, he was
denied adequate assistance from his stand-by counsel, he was scared, he lacked access
to a law library, and he was mislead about the plea bargain. Thereafter, he filed a
"Continuing Motion to Withdraw Guilty Plea" in which he stated, among other
things:




                                           -6-
               3. The justice of the law should protect me although I pleaded
      guilty (involuntarily, threatened and coerced) but not had also realized
      [sic] that my alleged conduct of allegedly claiming that a backpack that
      was twenty feet away from me was mines [sic] does not fall within
      . . . the charge of possession. . . . I was tricked into thinking that I would
      be found guilty to "those" circumstances of "that" back[p]ack holding
      the camera with the alleged pornographic image of a minor sitting in a
      corner which I never claimed to be mines [sic]! I believe that in my heart
      that I should not be found guilty and there is no factual basis for the
      plea, and would request that the involuntary plea be set aside and this
      matter be set for trial to protect my innocence.

(Emphasis added.)2

      The court denied Johnson's motion to withdraw his guilty plea, rejecting
Johnson's argument "that the [g]overnment cannot prove that the offense with which
he was charged and to which he entered a guilty plea affects interstate commerce."
According to the court:

      [T]he government satisfied the interstate commerce element here. First,
      the plea agreement that the Defendant signed and agreed to specifically
      states that the materials used to produce the child pornography he is
      charged with possessing were produced and stored on "materials that
      had been mailed[,] shipped or transported in interstate commerce." Plea
      Agreement, ¶ 2. Second, the [g]overnment advised the [c]ourt that it had
      sufficient admissible evidence to support a conviction to the charge in
      the Indictment. Plea Transcript, 36. Finally, the Defendant in his sworn
      plea admitted that the images he possessed were produced using
      materials transported in interstate commerce. Plea Transcript, 30. Such
      evidence satisfies the jurisdictional requirement of 18 U.S.C. § 2252.



      2
       Following this supplemental motion, Johnson filed two additional motions to
withdraw his plea.

                                           -7-
(Emphases added.)3

       The court also rejected Johnson's claim that it should allow him to withdraw
his guilty plea based on ineffective assistance of counsel, explaining that Johnson
chose to proceed pro se after the court "warned of the perils of proceeding in such a
manner." The court concluded that Johnson's "stand-by counsel could not have been
ineffective" given that Johnson "was his own counsel" and the court never
"authorized hybrid representation." Finally, the court concluded that Johnson failed
to show a fair and just reason under Federal Rule of Criminal Procedure 11(d)(2)(B)
to justify the withdrawal of the plea.

      The district court ultimately sentenced Johnson to 36 months'
imprisonment—the maximum time permitted under the Rule 11(c)(1)(C) plea
agreement.

                                     II. Discussion
       Johnson challenges his conviction, contending that the district court violated
Federal Rule of Criminal Procedure 11(b)(3) by failing to determine that a factual
basis for his plea existed. Specifically, he asserts that nothing in the record supports
a finding that the video at issue was "produced" using materials that moved in
interstate commerce. See 18 U.S.C. § 2252(a)(4)(B). Additionally, he contends that
the district court abused its discretion in denying his motion to withdraw his guilty
plea because he asserted his innocence and articulated a fair and just reason to
withdraw his plea.




      3
       The district court's use of the terms "produce" and "produced" in describing
the plea agreement is inaccurate. As previously noted, ¶ 2 of the plea agreement uses
the term "stored."

                                          -8-
                              A. Factual Basis for Plea
       Johnson first argues that his plea lacks a factual basis under Rule 11(b)(3)
because nothing in the record supports a finding that he "produced" the video using
materials that moved in interstate commerce. According to Johnson, he only admitted
that the video was "stored" on a device that moved in interstate commerce.

              Rule 11(b)(3) requires that, "[b]efore entering judgment on a
      guilty plea, the court must determine that there is a factual basis for the
      plea." This provision is "satisfied by the existence of sufficient evidence
      at the time of the plea upon which a court may reasonably determine that
      the defendant likely committed the offense." United States v. Gamble,
      327 F.3d 662, 664 (8th Cir. 2003) (internal quotation omitted).

United States v. Frook, 616 F.3d 773, 776 (8th Cir. 2010). In determining whether a
factual basis exists for the plea, the district "court may consider stipulated facts in a
plea agreement along with any other evidence presented at a plea hearing." Id.
"Although [a] district court [may] not [have] set forth its reasons for accepting [a
defendant's] plea, the record [may] reflect[] that a factual basis did exist." Id.

       "The purpose of [Rule11(b)(3)] is to protect a defendant who is in the position
of pleading voluntarily with an understanding of the nature of the charge but without
realizing that his conduct does not actually fall within the charge." United States v.
Heid, 651 F.3d 850, 854 (8th Cir. 2011) (quotations and citations omitted). "[A]
district court's failure to comply with Rule 11 calls into question the knowing and
voluntary nature of a plea, and thus its validity." Frook, 616 F.3d at 775. A
defendant's entry of an unconditional guilty plea following "an imperfect Rule 11
colloquy . . . do[es] not 'waive' all errors under Rule 11." Id.

      If a district court accepts a guilty plea based on a set of facts that plainly
      and obviously does not constitute a federal offense, but nonetheless
      determines pursuant to Rule 11(b)(3) that the defendant's conduct did


                                           -9-
      violate federal law, then there has been a violation of the Rule 11
      scheme designed to ensure a knowing and voluntary plea.

Id.

       Johnson and the government dispute which standard of review applies to our
review of his alleged Rule 11 error. Johnson argues that we should apply harmless
error, while the government argues that plain error applies. See United States v. Gray,
581 F.3d 749, 752 (8th Cir. 2009) ("When considering an alleged Rule 11 error, this
Court must first determine if the defendant objected before the district court. If so, we
review for harmless error, and the government has the burden of proving the
defendant's knowledge and comprehension of the omitted information would not have
been likely to affect his willingness to plead guilty. If not, we review for plain error,
and the burden is on the defendant to show he would have plead not guilty but for the
Rule 11 violation." (internal citation omitted)). We need not definitively resolve
which standard of review applies because we conclude that no Rule 11(b)(3) error
occurred, as sufficient evidence exists from which the district court could reasonably
conclude that Johnson committed the charged offense. See United States v.
Christenson, 653 F.3d 697, 700 (8th Cir. 2011).

             Our review of the factual basis for a guilty plea is limited. We ask
      only whether there was sufficient evidence before the district court
      "upon which a court may reasonably determine that the defendant likely
      committed the offense." See United States v. Cheney, 571 F.3d 764, 769
      (8th Cir. 2009) (internal quotation omitted). "We have held that facts
      gathered from the prosecutor's summarization of the plea agreement and
      the language of the plea agreement itself, a colloquy between the
      defendant and the district court, and the stipulated facts before the
      district court are sufficient to find a factual basis for a guilty plea."
      United States v. Orozco–Osbaldo, 615 F.3d 955, 958 (8th Cir. 2010)
      (internal quotation omitted). We may also consider facts set forth in the
      presentence report to determine whether there was a sufficient factual


                                          -10-
      basis for the plea. See Orozco–Osbaldo, 615 F.3d at 958; United States
      v. Brown, 331 F.3d 591, 595 (8th Cir. 2003); cf. Howard v. United
      States, 135 F.3d 506, 509–10 (7th Cir. 1998).

Id.

      Here, Johnson pleaded guilty to possession of child pornography, in violation
of 18 U.S.C. § 2252(a)(4)(B). A defendant violates § 2252(a)(4)(B) if he "knowingly
possessed an item of child pornography which was transported or produced using
materials transported in interstate commerce." United States v. Koch, 625 F.3d 470,
478 (8th Cir. 2010). "[T]he government [is] required to establish that the child
pornography [that the defendant] possessed had been transported in interstate
commerce or produced using such materials." Id. at 479 (emphasis added). Here, the
indictment charged Johnson with possessing a video "which was produced using
materials that had been mailed, shipped and transported in interstate commerce by any
means."

      "'Producing' is defined as 'producing, directing, manufacturing, issuing,
publishing, or advertising.'" United States v. Fadl, 498 F.3d 862, 866 (8th Cir. 2007).
We have previously recognized that

      [t]he fact that "producing" is retained in the definition and placed
      alongside other terms indicates that Congress intended to retain a
      non-technical definition of the term "producing" (that is, in the sense of
      creating or making), but also sought to expand its scope to include
      activities that may not be generally considered to fall within the typical
      meaning of the term. We therefore conclude that list of terms in the
      definition reflects Congress's intention to enact a broad definition of
      "producing" that encompasses the varied means by which an individual
      might actively participate in the creation and distribution of child
      pornography.

Id. at 866–67 (emphases added).
                                         -11-
       Johnson points out that the factual-basis paragraph in the plea agreement only
states "that the image he possessed was stored on materials that had been mailed,
shipped or transported in interstate commerce." (Emphasis added.) He also notes that
he only agreed during the change-of-plea hearing "that the camera that stored the
video was manufactured outside of the State Minnesota." According to Johnson,
"'[s]toring' and 'producing' are not synonymous, and the statutory definition of
'producing' in § 2256 does not include 'storing.' Therefore, mere storage of the video
on materials that moved in interstate commerce does not come within the conduct
prohibited by the statute." He also argues that the government's representation to the
court that it had sufficient evidence to sustain the conviction is insufficient to
establish the production element because the government failed to describe the record
evidence. Thus, Johnson concludes that "[t]he district court violated Rule 11 by not
enforcing the plain language of the statute, which requires showing that the video was
produced—not stored—using materials that moved in interstate commerce."
(Emphasis omitted.)

       But Johnson overlooks his admissions at the change-of-plea hearing, which
support a finding that he "produced" the video found on the camera; that is, he
"created" or "made" the child pornography or "actively participate[d] in the creation
. . . of child pornography." See Fadl, 498 F.3d at 867. The government asked
Johnson, "[Y]ou now know . . . that you could not videotape consensual sex between
you and [your minor girlfriend] under federal law, true?" (Emphasis added.) Johnson
responded, "True." By answering in the affirmative, Johnson admitted that it was
unlawful for him to videotape the sexual encounter, i.e., "create" or "make" the child
pornography. See Fadl, 498 F.3d at 867. In answering a follow-up question, Johnson
acknowledged that federal "law says that [he] cannot do that," i.e., videotape a
consensual sexual encounter with a minor. He also agreed that he "possessed an
electronic device[, the camera,] that had on it a [child-pornography] video" and that
this "camera . . . that stored this video was manufactured outside of Minnesota" and
therefore "move[d] in interstate commerce." (Emphasis added.) Based on this

                                        -12-
evidence, the district court could reasonably infer that the camera that traveled in
interstate commerce, which Johnson possessed and which stored the child-
pornography video, was the same one that Johnson used to create the video.4

      Therefore, we conclude that no Rule 11(b)(3) error occurred, as sufficient
evidence exists from which the district court could reasonably conclude that Johnson
committed the charged offense. See Christenson, 653 F.3d at 700.

                         B. Motion to Withdraw Guilty Plea
        Johnson also argues that the district court abused its discretion in denying his
motion to withdraw his guilty plea because he "timely articulated a fair and just
reason for withdrawing the plea because he challenged [the] voluntariness of his
plea." (Emphasis omitted.) Specifically, he asserts that he "challenged [the]
voluntariness of the plea [that] he entered by asserting that (1) the plea lacks [a]
factual basis and (2) he did not possess an understanding of the law in relation to the
facts."

      "After a guilty plea is accepted but before sentencing, a defendant may
      withdraw the plea if he establishes 'a fair and just reason for requesting


      4
        Johnson relies extensively on Sixth Circuit precedent in his reply brief. See,
e.g., United States v. Goldberg, 862 F.2d 101, 106 (6th Cir. 1988) ("In our judgment,
to permit the district court to infer a factual basis in the absence of a record
demonstrating the existence of a factual basis would tend to negate the
well-established safeguards inherent in the Rule 11(f) mandate."). In Goldberg, the
court had a very limited record on which to prove that the defendant affirmatively
concealed mail fraud—a much more fact-intensive inquiry than here. The record here
is more detailed and does not require an inference of the entire factual basis—rather,
the circumstantial evidence (as well as Johnson's admission of breaking the law)
allows the court to "reasonably determine that the defendant likely committed the
offense." Frook, 616 F.3d at 776 (quotation and citation omitted); see also id.
(circumstantial proof acceptable); United States v. Cheney, 571 F.3d 764, 769 (8th
Cir. 2009) (same).
                                         -13-
      the withdrawal.'" United States v. Goodson, 569 F.3d 379, 382 (8th Cir.
      2009) (quoting Fed. R. Crim. P. 11(d)(2)(B)). "While the standard is
      liberal, the defendant has no automatic right to withdraw a plea." United
      States v. Ramirez–Hernandez, 449 F.3d 824, 826 (8th Cir. 2006). "Even
      if such a fair and just reason exists, before granting the motion a court
      must consider 'whether the defendant asserts his innocence of the
      charge, the length of time between the guilty plea and the motion to
      withdraw it, and whether the government will be prejudiced if the court
      grants the motion.'" Id. (quoting United States v. Nichols, 986 F.2d
      1199, 1201 (8th Cir. 1993)). However, "[i]f the defendant fails to
      establish a fair and just reason for withdrawing the guilty plea, the trial
      court need not address the remaining considerations." Nichols, 986 F.2d
      at 1201. We review the district court's decision not to allow the
      withdrawal of a guilty plea for an abuse of discretion. United States v.
      Maxwell, 498 F.3d 799, 801 (8th Cir. 2007); United States v. Wicker, 80
      F.3d 263, 266 (8th Cir. 1996).

United States v. Heid, 651 F.3d 850, 853–54 (8th Cir. 2011).

       We conclude that the district court did not abuse its discretion in denying
Johnson's motion to withdraw his guilty plea because Johnson failed to establish a
fair and just reason for the withdrawal of the plea. See id. First, we have already
concluded that a factual basis does exist for the guilty plea.

       Second, the record reflects that Johnson did possess "an understanding of the
law in relation to the facts." See McCarthy v. United States, 394 U.S. 459, 466 (1969)
("Moreover, because a guilty plea is an admission of all the elements of a formal
criminal charge, it cannot be truly voluntary unless the defendant possesses an
understanding of the law in relation to the facts."). Johnson contends "that his stand-
by counsel failed to provide him with legal research," which shows that his plea was
involuntary because he did not understand the law. But Johnson chose to represent
himself, and "a defendant who has elected to proceed pro se cannot later complain of



                                         -14-
his own ineffectiveness as a ground for reversal." United States v. Weisman, 858 F.2d
389, 391 (8th Cir. 1988).

       Furthermore, a review of the change-of-plea transcript belies Johnson's claims
that he did not voluntarily enter his guilty plea. We agree with the government that,
"[d]uring his plea colloquy, [Johnson] indicated he was clear headed, was able to
make decisions, understood the consequences of his plea, had sufficient time to
review the charges, understood the . . . plea agreement that was offered, and wished
to take advantage of the offer and enter a guilty plea." Following the government's
review of the factual basis for the plea, the court reviewed with Johnson his
constitutional rights and explained that Johnson was foregoing those rights by
pleading guilty. Johnson indicated that he understood. When the court inquired of
stand-by counsel whether counsel believed that Johnson was voluntarily and
knowingly entering his guilty plea, stand-by counsel answered in the affirmative.
Counsel explained that he had reviewed the plea agreement with Johnson and
expressed his belief that Johnson "is intelligent [and] articulate" and "underst[oo]d
the nature of the plea agreement, the proceedings . . . in court . . . , and all the
potential ramifications."

        "In short, there is no indication in the record of any fair and just reason to allow
[Johnson] to withdraw his guilty plea[], and the district court did not abuse its
discretion in refusing to allow withdrawal." See United States v. Osei, 679 F.3d 742,
747 (8th Cir. 2012) (rejecting the defendant's argument that a fair and just reason
existed for the withdrawal of his guilty pleas "because the pleas were predicated on
his attorney's urgings and direction, he misunderstood the parties' agreement
regarding relevant conduct for sentencing, and he demonstrated clear confusion
. . . during the Rule 11 colloquy" where the defendant was "highly educated,"
"testified clearly to the factual bases of his guilty pleas," "responded coherently when
the court asked him whether he had adequately conferred with his attorneys," and



                                           -15-
"listened and indicated his understanding and acceptance when the court explained
to him that his guilty pleas would be final").

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




                                       -16-
