                               UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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       Leak,    Jr.,       pled           guilty       to    one     count       of

possession      of    child       pornography,            in       violation        of    18    U.S.C.

§ 2252A(a)(5)(A)          (2006),        as    amended          by      the      Effective       Child

Pornography Prosecution Act of 2007, Pub. L. No. 110-358, 122

Stat.    4001.        The    district          court      sentenced           Leak       to    seventy

months’ imprisonment.             Leak timely appealed.

              On     appeal,       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     did    not    seek       to     withdraw          his    plea      in    the

district     court.         This    court       therefore            reviews        his   arguments

under the plain error standard.                      United States v. Mastrapa, 509

F.3d 652, 657 (4th Cir. 2007).                      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).                                    Even when these

conditions      are    satisfied,         we    may       exercise          our     discretion        to

notice the error only if it “seriously affects the fairness,

integrity or public reputation of judicial proceedings.”                                        Id. at

736 (internal quotation marks and alteration omitted).

              Prior    to    “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).                    This “ensures that the court

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make clear exactly what a defendant admits to, and whether those

admissions are factually sufficient to constitute the alleged

crime.”     United States v. DeFusco, 949 F.2d 114, 120 (4th Cir.

1991).     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.”                  United States v. Martinez, 277

F.3d   517,    531    (4th   Cir.       2002).      The   factual    basis       may    be

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.”).                     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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