US v. Lorenzo Leak, Jr., No. 08-4914 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4914 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LORENZO LEAK, JR., Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 possession of Leak, child ยง 2252A(a)(5)(A) Jr., pled pornography, (2006), as guilty in to one violation amended by the count of 18 of U.S.C. Effective Child Pornography Prosecution Act of 2007, Pub. L. No. 110-358, 122 Stat. 4001. The district months imprisonment. On court sentenced Leak to seventy district court s Leak timely appealed. appeal, Leak challenges acceptance of his guilty plea. the Specifically, Leak asserts that the district court erred in finding a factual basis to support his plea. district Leak court. did not This seek court to withdraw therefore his reviews plea his in the 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. States v. Olano, 507 U.S. 725, 732-34 (1993). conditions are satisfied, we may exercise United Even when these 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 court plea. must to entering determine that judgment there Fed. R. Crim. P. 11(b)(3). 2 is a on a guilty factual plea, basis for the the This ensures that the court 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. F.3d 517, 531 (4th Cir. United States v. Martinez, 277 2002). supported by anything in the record. The factual basis may be 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 contentions argument adequately because presented in the the facts and materials legal before the court are and argument would not aid the decisional process. AFFIRMED 3
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