                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-5042



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


HORACE LINTON BROWN,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, District Judge.
(8:06-cr-00140-PJM)


Submitted:   December 14, 2007            Decided:   January 10, 2008


Before MOTZ, TRAXLER, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Susan L. Ferguson, Burbank, California, for Appellant.     Rod J.
Rosenstein, United States Attorney, Stacy Dawson Belf, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Horace L. Brown appeals his conviction and sentence for

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

§ 2252A(a)(5)(B) (2000).        Brown pleaded guilty to the single

offense with which he was charged and was sentenced to forty-eight

months’ incarceration.       On appeal, Brown contends the district

court abused its discretion in denying his motion to withdraw his

guilty plea, violated his due process rights by prohibiting a

witness from testifying in support of his motion to withdraw, and

further erred by imposing a sentence enhancement for obstruction of

justice.    Finding no error, we affirm.

            This court reviews the district court’s refusal to allow

a defendant to withdraw a guilty plea for abuse of discretion.

United States v. Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996).            “A

defendant has no absolute right to withdraw a guilty plea, and the

district court has discretion to decide whether a fair and just

reason exists upon which to grant a withdrawal.”       United States v.

Bowman, 348 F.3d 408, 413 (4th Cir. 2003) (internal quotation marks

omitted).     Under United States v. Moore, 931 F.2d 245, 248 (4th

Cir. 1991), a district court considers six factors in regard to

such a motion: (1) whether the defendant has offered credible

evidence that his plea was not knowing and voluntary; (2) whether

the defendant has credibly asserted his legal innocence; (3)

whether there was a delay between the entry of the plea and the


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filing   of    the   motion;    (4)   whether   the   defendant   had   close

assistance of competent counsel; (5) whether withdrawal will cause

prejudice to the government; and (6) whether withdrawal will

inconvenience the court and waste judicial resources.             Id.    This

court closely scrutinizes the Rule 11 colloquy and attaches a

strong presumption that the plea is final and binding if the Rule

11 proceeding is adequate. United States v. Lambey, 974 F.2d 1389,

1394 (4th Cir. 1992).

              At the Fed. R. Crim. P. 11 hearing, Brown agreed with the

Government’s recitation of the facts in his case, stated that he

was entering his plea voluntarily, and asserted that he was guilty

of the crime charged.          Brown’s sworn statements at the Rule 11

hearing are presumed to be true.          See Blackledge v. Allison, 431

U.S. 63, 73-74 (1977).         When a defendant subsequently claims to

have lied during the Rule 11 colloquy, “he bears a heavy burden in

seeking to nullify the process.” United States v. Bowman, 348 F.3d

408, 417 (4th Cir. 2003).        Brown has not identified any infirmity

in the Rule 11 hearing, as the record demonstrates that the

district court adequately informed him of his rights and the

charges he faced, inquired as to the voluntariness of his plea, and

determined that there was a sufficient factual basis for the plea.

              Brown claims that he presented credible evidence of his

legal innocence and that the district court violated his due

process rights by preventing “C.W.,” who was twelve at the time of


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the events in question and had turned seventeen shortly before the

hearing, from testifying in support of Brown’s motion to withdraw

his guilty plea. Brown asserts that the district court should have

conducted a hearing to determine C.W.’s competency to testify

before accepting the guardian ad litem’s invocation of C.W.’s Fifth

Amendment rights, especially in light of the fact that C.W. had

indicated through counsel that he wished to testify and confess his

involvement.1

           However,   Brown   has    failed   to   demonstrate   that   the

district court erred by proceeding through counsel’s proffer of

C.W.’s admission rather than live testimony.             First, while he

asserts that C.W. should have been allowed to take the stand, Brown

fails to identify any relevant testimony that was not presented to

the district court through the proffer.            See Moore, 931 F.2d at

247-48.   In rejecting Brown’s assertion of innocence, the district

court largely relied on the fact that Brown gave a detailed

admission of his involvement to the federal agents who questioned

him at his home in 2003.      The court found that even if C.W. was



     1
      Brown also contends that the district court erred by
requiring “proof of innocence,” as he repeatedly asserts that
withdrawal should be “liberally granted.” However, the burden on
the defendant is to demonstrate to the satisfaction of the district
court that a fair and just reason supports his request to withdraw.
Moore, 931 F.2d at 248. Furthermore, while Brown is not required
to provide conclusive proof of innocence, a defendant’s credible
assertion of his legal innocence remains one of the six Moore
factors that the district court must consider in determining
whether to permit withdrawal of the plea. Id.

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somehow involved in using Brown’s computer and financial accounts

to download hundreds of pornographic images, Brown had failed to

put forth any explanation as to when he discovered the images on

his computer or how he was subsequently able to provide such a

detailed admission to the investigators.2     On appeal, Brown has

failed to demonstrate that the district court’s ruling in regard to

C.W.’s testimony in any way prejudiced his ability to assert his

legal innocence, as the court ultimately held that even if C.W.’s

account was taken into consideration, Brown still qualified as an

aider and abettor or joint possessor of the pornographic images.

            Furthermore, while a defendant’s assertion of his legal

innocence is to be evaluated by the district court, it is only one

of six factors to be taken into consideration, with the most

important factor being the adequacy of the Rule 11 hearing.     See

Lambey, 974 F.2d at 1394.   Brown failed to demonstrate he did not

intelligently and voluntarily enter his plea.      At the Rule 11

hearing, Brown agreed with the Government’s detailed recitation of

the facts and admitted he obtained child pornography from the

internet.   Accordingly, Brown’s later assertions of innocence must

be considered alongside the presumption of truth granted to his


     2
      At the hearing, Brown was asked by the district court about
how and when he discovered the pornographic images on his computer;
however, Brown declined to provide any explanation, as counsel
stated only that “I suspect Mr. Brown came to discover what [C.W.]
was doing, and consequently, Mr. Brown was in the position of
speaking meaningfully to what was on that hard drive . . . when the
agents came to the home.”

                                - 5 -
sworn statements made during the plea hearing. See Blackledge, 431

U.S. at 73-74.       Given the strong presumption that the plea is final

and binding if the Rule 11 proceeding is adequate, Brown has failed

to   demonstrate        the    court   erred   in   its   determination     of   the

remaining Moore factors. Therefore, we find no abuse of discretion

as to the district court’s denial of Brown’s motion to withdraw his

guilty plea.

              Brown also challenges the district court’s enhancement of

his sentencing guidelines offense level for obstruction of justice.

Brown first contends that his Sixth Amendment rights were violated

because the findings of fact supporting the sentence enhancement

were not admitted to or proven beyond a reasonable doubt. However,

pursuant to the remedial portion of United States v. Booker, 543

U.S. 220 (2005), district courts will continue to make decisions

about sentencing factors on the preponderance of the evidence,

taking into account that the resulting Guidelines range is advisory

only.    See United States v. Morris, 429 F.3d 65, 71 (4th Cir.

2005), cert. denied, 127 S. Ct. 121 (2006).

              As   to    the     district   court’s   obstruction     of    justice

determination, this court reviews findings of fact for clear error

and questions of law de novo.               United States v. Green, 436 F.3d

449,    456   (4th      Cir.),    cert.   denied,   126   S.   Ct.   2309   (2006).

Pursuant to U.S. Sentencing Guidelines Manual (“USSG”) § 3C1.1




                                          - 6 -
(2002),3 a two-level enhancement for obstruction of justice may be

imposed if the defendant:

     willfully obstructed or impeded, or attempted to obstruct
     or impede, the administration of justice during the
     course of the investigation, prosecution, or sentencing
     of the instant offense of conviction, and the obstructive
     conduct related to the defendant’s offense of conviction
     and any relevant conduct; or a closely related offense.

A defendant’s denial of guilt, other than a denial under oath that

constitutes perjury, is not an adequate basis for application of

§ 3C1.1, as the defendant should not be punished for the exercise

of a constitutional right.        See USSG § 3C1.1, comment. (n.2).

However, a defendant cannot go beyond a mere denial of his guilt

and attempt to implicate another individual as responsible for the

criminal conduct.    See United States v. Gormley, 201 F.3d 290, 294

(4th Cir. 2000).

          While Brown did not testify in support of the motion to

withdraw his guilty plea, the proffer made by counsel on his behalf

went beyond a mere denial of guilt, as Brown contended that the

criminal acts were actually performed by a twelve-year—old boy.

See Gormley,   201   F.3d   at   294.     Additionally,    the   sentencing

enhancement was not predicated on a finding that Brown perjured

himself; rather, the district court’s determination was based on

the materially false statements put forth by Brown in his attempt

to implicate another individual.           See USSG § 3C1.1, comment.


     3
      The parties stipulated        that    the   2002    version   of   the
Sentencing Guidelines applied.

                                  - 7 -
(n.4(f)).       The   district   court   held   that   Brown   had   directly

contradicted his own sworn testimony at the Rule 11 hearing and

that his attempt to declare his complete innocence at the expense

of a minor was “incredible.”         Based on Brown’s sworn statements

during the Rule 11 plea colloquy and his subsequent implication of

another individual as the guilty party, we find the district

court’s factual findings were not clearly erroneous and adequately

supported a one-level enhancement for presenting materially false

information to the court.

            Accordingly, we affirm Brown’s conviction and sentence.

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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