United States of America v. Lorenzo Leak, Jr.

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

-- 1 of 3 --

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
2

-- 2 of 3 --

3
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

-- 3 of 3 --