                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4254


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

STEVIE BURTON,

                  Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:04-cr-00559-AW)


Submitted:    October 27, 2009              Decided:   November 6, 2009


Before WILKINSON and      NIEMEYER,   Circuit   Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Jane C. Norman, BOND & NORMAN, Washington, D.C., for Appellant.
Rod J. Rosenstein, United States Attorney, Sandra Wilkinson,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Stevie     Burton    appeals       the   district    court’s      judgment

sentencing him to consecutive prison terms totaling 352 months

after pleading guilty to conspiracy to distribute cocaine and

cocaine base, and possession of a firearm in furtherance of a

drug trafficking crime.                On appeal, he contends the district

court abused its discretion in denying his motion to withdraw

his guilty plea and in allowing cross-examination at the hearing

on    the   motion;      the    district     court     plainly    erred     under      U.S.

Sentencing Guidelines Manual §§ 6A1.3, 6A1.4 (2005) when finding

he    was     not   entitled      to    a    reduction     in     offense      level     at

sentencing      for    acceptance       of    responsibility;        the       Government

breached the plea agreement by opposing the reduction and the

district court erred in not holding a hearing on the issue; and

his    case     should     be    remanded        for   resentencing       in    view     of

Kimbrough v. United States, 552 U.S. 85 (2007).                     We affirm.

              We review the district court’s denial of a motion to

withdraw a guilty plea for abuse of discretion.                       United States

v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).                            A defendant

does not have an absolute right to withdraw a guilty plea, and

he bears the burden of demonstrating to the district court’s

satisfaction that a fair and just reason supports his request to

withdraw.       United States v. Moore, 931 F.2d 245, 248 (4th Cir.

1991).      In deciding whether to grant the motion, the district

                                             2
court considers:       (1) whether the defendant has offered credible

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

whether   he    has    credibly    asserted    his     legal    innocence;    (3)

whether there has been a delay between the entering of the plea

and filing of the motion; (4) whether the defendant has had the

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.                  Id.    The

most important consideration in resolving a motion to withdraw a

guilty plea is an evaluation of the Fed. R. Crim. P. 11 colloquy

at which the guilty plea was accepted; and a properly conducted

Rule 11 colloquy raises a strong presumption that the plea is

final and binding and leaves a defendant with a very limited

basis upon which to have his plea withdrawn.                   United States v.

Bowman, 348 F.3d 408, 414 (4th Cir. 2003).

           We   have    reviewed    the     record    and   conclude   that   the

district court did not abuse its discretion in denying Burton’s

motion to withdraw his guilty plea.                  Burton claimed that his

plea was not knowingly entered into because he thought the plea

agreement he signed was the same as a previous version and he

was unaware of its provisions regarding forfeiture.                 However, in

his   guilty    plea    colloquy,     the    district       court   specifically

questioned Burton concerning these provisions, and he confirmed

his understanding of them.          At the hearing on his motion, Burton

                                       3
also expressed concern that the Government could claim that he

breached the plea agreement because his wife had filed claims to

forfeitable assets.         The district court responded that it was

the court’s decision as to whether Burton was in breach of the

agreement and confirmed the Government had not asserted such a

claim before the court.         At the end of the hearing, the district

court   found    Burton   failed      to   present      sufficient    evidence     to

warrant a withdrawal, as there simply was no credible evidence

showing   his    plea     was   not    knowing        and   voluntary,     and   the

remaining Moore factors did not weigh in his favor.                      On appeal,

Burton does not allege any error in the district court’s plea

colloquy but reasserts his claim that his plea was not knowingly

entered into; contends his plea agreement was void based on his

own violation of the agreement; and complains that the district

court relied on the Moore factors in denying his motion.                           We

find no abuse of discretion by the district court.

           Burton next contends that the district court abused

its discretion in allowing the Government to cross-examine him

at his withdrawal hearing resulting in loss of a reduction for

acceptance of responsibility.                  While acknowledging there were

six factors under Moore that the district court had to consider,

Burton asserted his focus in bringing the motion was “not on

strongly whether he admitted any involvement” in the offense but

whether   he    knowingly   understood          and   entered   his   plea.      When

                                           4
Burton’s         attorney   proposed      having     him    testify,    the    district

court strongly cautioned against doing so, specifically noting

his innocence was one of the factors the court had to consider

and he risked losing points for acceptance of responsibility.

The court suggested counsel could represent what his testimony

would      be.      However,      despite   the    warning,     Burton       decided   to

testify.          While he did not discuss the issue of innocence on

direct      examination,       the      Government    questioned       him    regarding

whether he conspired with other people to sell drugs as charged

in    the    indictment.          The     district    court    overruled       Burton’s

objection as this was a relevant issue under the Moore standard.

As a result, Burton made statements that were inconsistent with

those in his plea agreement and guilty plea colloquy.

                 On appeal, Burton argues the district court’s ruling

violated Fed. R. Evid. 104(a), 611(b); and Simmons v. United

States, 390 U.S. 377 (1968).                However, Rule 104(a) and Simmons

are not applicable to the hearing in this case because it was

not a motion to suppress evidence or other preliminary hearing,

and   we    find     no   abuse    of    discretion    in    the   district     court’s

ruling under Rule 611(b).                 See United States v. McMillon, 14

F.3d 948, 955-56 (4th Cir. 1994).                     A defendant who testifies

waives his Fifth Amendment privilege against self-incrimination

in all subject matters relevant to the direct examination and

therefore subject to proper cross-examination.                         See Brown v.

                                             5
United States, 356 U.S. 148, 154-56 (1958); Johnson v. United

States, 318 U.S. 189, 195-96 (1943).              Under Rule 611(b), cross-

examination is permitted as to the subject matter of the direct

examination, matters affecting the credibility of the witness,

and, in the exercise of discretion, additional matters as if on

direct examination.       See Fed. R. Evid. 611(b).           Here, the issue

of whether Burton claimed innocence in support of his motion to

withdraw his plea was relevant to his reasons for requesting

withdrawal and the district court’s consideration under Moore,

and it was therefore a subject matter relevant to his direct

examination on the motion.         We conclude there was no abuse of

discretion in allowing the Government’s cross-examination.

            Burton next contends the district court plainly erred

in   not   holding   an   evidentiary       hearing   under   USSG   § 6A1.3   to

determine whether he should receive a reduction for acceptance

of responsibility, and in failing to provide notice pursuant to

USSG § 6A1.4 that the court “planned to possibly depart from the

applicable sentencing guideline range” by denying an adjustment

for acceptance of responsibility.             We find no plain error by the

district court.      USSG § 6A1.4, based on Fed. R. Crim. P. 32(h),

does not apply in this case because there was no departure from

the applicable guideline range.             Cf. Irizarry v. United States,

128 S. Ct. 2198, 2202-03 (2008).               In any event, Burton was on

notice prior to sentencing that acceptance of responsibility was

                                        6
a disputed sentencing factor both because of the Government’s

response    to   his   motion   to    withdraw      his     guilty    plea    and    the

district court’s statements at the motion hearing.                           Moreover,

the district court fully complied with USSG § 6A1.3, by giving

Burton an adequate opportunity to present information regarding

the disputed factor, and the court resolved the dispute at a

sentencing hearing in accordance with Fed. R. Crim. P. 32(i).

On    appeal,    Burton   contends     the       district     court    should       have

conducted an evidentiary hearing on the issue.                        However, the

resolution of the issue was based on Burton’s testimony at the

motion hearing; he did not seek to introduce any evidence at

sentencing or request an evidentiary hearing; and the district

court did not plainly err in failing to provide one.

            Burton next contends the Government breached the plea

agreement by opposing an acceptance of responsibility reduction

and the district court erred in failing to hold a hearing on the

issue.     Because Burton raises this issue for the first time on

appeal, our review is for plain error.                    See Fed. R. Crim. P.

52(b); Puckett v. United States, 129 S. Ct. 1423, 1428 (2009).

We find no error.         The plea agreement provided the Government

was    permitted    to    oppose     any       adjustment    for     acceptance       of

responsibility if Burton attempted to withdraw his guilty plea,

among other things.         Thus, the Government did not breach the

agreement when it responded to Burton’s motion to withdraw his

                                           7
guilty plea with a request that he be denied a reduction for

acceptance of responsibility, and the district court did not err

in failing to hold a hearing that Burton never requested.

              Finally, Burton contends his case should be remanded

for resentencing in view of Kimbrough.                    Because Burton did not

preserve this claim in the district court but raises it for the

first time on appeal, our review is for plain error.                       See United

States   v.    Rodriguez,     433    F.3d       411,   414-16   (4th    Cir.    2006).

Therefore, it is his burden to show that (1) an error occurred,

(2) it was plain, (3) the error affected his substantial rights,

and (4) we should exercise our discretion to notice the error.

See United States v. Olano, 507 U.S. 725, 732 (1993).                          We find

that Burton has not made this showing.                      On appeal, he argues

that if the district court knew that it had discretion under

Kimbrough     to   “depart”   from       the    guideline    range     based   on   the

disparity in sentencing between powder and crack cocaine, it

“might have done so.”          Even if we concluded the district court

plainly erred by treating the crack guidelines as mandatory,

Burton fails to show any prejudice because he does not point to

any   nonspeculative    basis       in    the    record   to    indicate    that    the

district court would have imposed a lower sentence if it had the

benefit of Kimbrough at the time of sentencing.                          See United

States v. White, 405 F.3d 208, 223 (4th Cir. 2005).



                                           8
           We therefore affirm the district court’s judgment.       We

deny Burton’s motion to file a pro se supplemental brief.           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




                                    9
