                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4380


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

DEMARC T. BURTON,

                  Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:08-cr-00198-REP-2)


Submitted:    November 20, 2009             Decided:   January 4, 2010


Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Edwin F. Brooks, EDWIN F. BROOKS, LLC, Richmond, Virginia, for
Appellant.   Dana J. Boente, United States Attorney, Michael A.
Jagels, Special Assistant United States Attorney, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Demarc         T.    Burton     pled        guilty      pursuant     to    a    plea

agreement      to    six    separate       felony          counts    of   possession         with

intent    to    distribute          cocaine         hydrochloride          and     marijuana,

conspiracy      to     possess        with       intent        to    distribute        cocaine

hydrochloride         and       marijuana,       possession          of    oxycodone,           and

possession      of     a        firearm    as       a      convicted      felon.           Burton

subsequently moved to withdraw his guilty plea, and the district

court denied his motion.              At sentencing, Burton objected to the

presentence         investigation         report        (“PSR”),      asserting       that      he

should be given a mitigating role adjustment and that he should

not receive an enhancement for possession of a firearm with an

obliterated      serial         number.         The     district       court     denied      both

objections and sentenced Burton to 151 months in prison.                                        On

appeal, Burton contends that the district court erred in denying

his motion to withdraw his guilty plea and his objections to the

PSR.    Finding no error, we affirm.

            Burton first challenges the district court’s denial of

his motion to withdraw his guilty plea, alleging that he did not

knowingly and voluntarily enter his plea.                           Burton claims that he

was not informed fully about certain mitigating evidence or the

existence of a motion to continue filed by his counsel, and that

his    responses      to    the    inquiries          at    the   Fed.    R.   Crim.       P.    11

hearing were given at the direction of counsel.

                                                2
            This         court   reviews    a    district   court’s     denial   of    a

motion to withdraw a guilty plea for abuse of discretion.                            See

United States v. Dyess, 478 F.3d 224, 237 (4th Cir. 2007).                           The

defendant bears the burden of demonstrating “a fair and just

reason    for       requesting      the    withdrawal.”       Fed.      R.   Crim.    P.

11(d)(2)(B).         A “fair and just” reason “is one that essentially

challenges      .    .    .   the   fairness     of   the   Rule   11    proceeding.”

United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992).

           When determining whether a defendant has articulated a

fair and just reason, this court looks to six factors:

     (1)   whether  the  defendant  has   offered  credible
     evidence that his plea was not knowing or not
     voluntary, (2) whether the defendant has credibly
     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); see

also United States v. Sparks, 67 F.3d 1145, 1154 (4th Cir. 1995)

(explaining that not all factors are of equal weight, and that

“[t]he factors that speak most straightforwardly to the question

whether the movant has a fair and just reason to upset settled

systemic expectations by withdrawing her plea are the first,

second,    and        fourth”).            However,    “[t]he      most      important

consideration in resolving a motion to withdraw a guilty plea is


                                             3
an evaluation of the Rule 11 colloquy at which the guilty plea

was accepted.”       United States v. Bowman, 348 F.3d 408, 414 (4th

Cir.    2003).      “[A]     properly    conducted     Rule    11   guilty       plea

colloquy leaves a defendant with a very limited basis upon which

to have his plea withdrawn.”            Id.      Where a Rule 11 hearing is

properly conducted, it raises “a strong presumption that the

plea is final and binding.”          Lambey, 974 F.2d at 1394.

              A review of the record shows that, aside from Burton’s

self-serving statements, there is nothing to indicate that his

plea was not knowing or voluntary.               At a hearing on the motion

to    withdraw,    Burton’s    former    counsel      testified     that    he    had

advised    Burton    about    the    relevant    mitigating    evidence.          The

district court made a credibility determination and chose to

believe the attorney’s testimony over Burton’s.                     Moreover, at

the    plea    hearing,      after   being      informed   that     if     he    were

untruthful at the hearing he would be subject to perjury charges

and that he would be bound by the statements he made, Burton

stated that he had discussed everything he needed to with his

attorney, that he was satisfied with his attorney’s services,

that everything in the statement of facts was correct, and that

he was pleading guilty because he was, in fact, guilty of those

charges.         These   assertions     may     not   easily   be    repudiated.

Lambey, 974 F.2d at 1395.



                                         4
           Burton also failed to credibly assert his innocence,

and made no more than conclusory allegations that he was not

guilty of any of the charges.                     The record, including Burton’s

statements at the Rule 11 hearing, also flatly refutes Burton’s

contention     that    he    did   not    receive       the    close   assistance       of

competent counsel.          Accordingly, we conclude that the district

court did not abuse its discretion by denying Burton’s motion to

withdraw his guilty plea.

           Burton also challenges the district court’s denial of

his objections to the PSR.               First, Burton argues that he should

have received a mitigating role adjustment because the evidence

pointed only to his alleged co-conspirator as a drug trafficker.

This   court   reviews       the    district         court’s   determination       of   a

defendant’s role in a criminal offense for clear error.                           United

States v. Sayles, 296 F.3d 219, 224 (4th Cir. 2002).                              Under

§ 3B1.2   of    the    Sentencing        Guidelines       Manual,      a   defendant’s

offense level may be decreased by four levels if he was “a

minimal participant in any criminal activity,” two levels if he

was a minor participant, and three levels if his conduct falls

between   minimal      and       minor    participation.           U.S.     Sentencing

Guidelines     Manual        (“USSG”)         § 3B1.2     (2008).           A    minimal

participant    is     “substantially          less    culpable    than     the   average

participant,”       such    as   where    a       defendant    lacks   “knowledge       or

understanding of the scope and structure of the enterprise and

                                              5
of the activities of others.”                       USSG § 3B1.2 cmt. nn.3(A), 4.

This adjustment, however, is intended to be used infrequently.

USSG § 3B1.2 cmt. n.4.               A minor participant is one who “is less

culpable than most other participants, but whose role could not

be described as minimal.”               USSG § 3B1.2 cmt. n.5.                    A defendant

bears the burden of proving that he is entitled to a mitigating

role    adjustment        by     a    preponderance            of     evidence.           United

States v.     Pratt,      239    F.3d        640,    645       (4th    Cir.      2001).      The

relevant inquiry for the court in making this determination not

only    compares    “the       defendant’s          culpability        to     that   of    other

participants,” but also measures the individual acts of each

participant and the “relative culpability against the elements

of the offense of conviction.”                 United States v. Reavis, 48 F.3d

763, 769 (4th Cir. 1995) (internal quotation marks omitted).

              The district court found that Burton’s arguments in

favor    of   the    adjustment         were        no    more      than    an    attempt    to

relitigate the motion to withdraw the guilty plea, and directly

contradicted the Statement of Facts Burton signed.                               As the court

correctly      noted,      the       Statement           of    Facts       showed    Burton’s

awareness     of    all    the       drugs    and        the   firearms,         contained    an

admission of a prior connection with his co-conspirator and the

recovered firearms, and showed him to be an active participant

in the offenses of conviction.                 Thus, the district court did not

clearly err in refusing to award a mitigating role adjustment.

                                               6
            Burton also asserts that the district court erred in

applying    an   enhancement      for    possession      of   a      firearm    with    an

obliterated serial number because he had no knowledge of the

weapons    or    the    obliterated      serial    number.            The    Guidelines

provide for a four-level enhancement if a firearm had an altered

or   obliterated       serial     number.         USSG    § 2K2.1(b)(4).               The

accompanying commentary specifically states that the enhancement

applies “regardless of whether the defendant knew or had reason

to believe that the firearm . . . had an altered or obliterated

serial number.”        USSG § 2K2.1(b)(4) cmt. n.8(B); see also United

States v. Statham, 581 F.3d 548, 553 (7th Cir. 2009) (stating

that the defendant need not have known that the serial numbers

had been removed from the weapons for the enhancement to apply);

United    States   v.    Brown,    514    F.3d     256,    269       (2d    Cir.   2008)

(finding    that   the    strict    liability      nature       of    this     provision

reasonably imposes the burden on the felon to ensure the number

is not obliterated, and that such a burden does not violate due

process);    cf.   United    States      v.   Mobley,     956     F.2d      450,   452-53

(3d Cir. 1992) (finding that the language of the enhancement

contained no scienter requirement, and no such requirement would

be read into the provision).              Burton admitted in the Statement

of Facts that he possessed a handgun with an illegible serial

number, and as a result, the district court did not err in

applying the enhancement to Burton’s sentence.

                                          7
           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 the

court and argument would not aid the decisional process.



                                                                  AFFIRMED




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