United States v. Cline , 286 F. App'x 817 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4756
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SANTANA JADE CLINE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:07-cr-00133-GBL)
Submitted: June 10, 2008 Decided: July 25, 2008
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Samuel W. Meekins, Jr., WOLCOTT, RIVERS & GATES, P.C., Virginia
Beach, Virginia, for Appellant. Chuck Rosenberg, United States
Attorney, Stephanie Bibighaus Hammerstrom, Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Santana Jade Cline appeals from her conviction for
trafficking in false authentication features for use in a false
identification document, in violation of 18 U.S.C.A. § 1028(a)(8),
(b)(2)(A), and (c)(3)(B) (West 2000 & Supp. 2008). Cline contends
the district court abused its discretion in denying her motion to
withdraw her guilty plea. Because our review of the record
discloses no reversible error, we affirm.
After a guilty plea has been entered, a defendant may
withdraw the plea only if she can show a “fair and just reason” for
withdrawal. Fed. R. Crim. P. 11(d)(2)(B). This court reviews the
district court’s denial of a motion to withdraw a guilty plea for
abuse of discretion. United States v. Bowman, 348 F.3d 408, 413-14
(4th Cir. 2003). When considering whether to permit a defendant to
withdraw a guilty plea, a district court must evaluate:
(1) whether the defendant has offered credible evidence
that [her] plea was not knowing or not voluntary
(2) whether the defendant has credibly asserted [her]
legal innocence (3) whether there has been a delay
between the entering of the plea and the filing of the
motion (4) whether defendant has had 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.
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).
Although all of these factors are to be given appropriate
weight, the most important consideration is the first - whether the
plea was knowing and voluntary. To determine this, the court must
-2-
assess whether the Rule 11 colloquy was properly conducted and the
plea was both counseled and voluntary. See Bowman, 348 F.3d at
413-14. Cline claims her Rule 11 proceeding was fatally flawed
because the stipulated facts included in her plea agreement were
not sufficient to constitute a violation of 18 U.S.C.A.
§ 1028(a)(8).
In evaluating the first Moore factor, this court closely
scrutinizes the plea colloquy and attaches a strong presumption
that the plea is final and binding if the Rule 11 proceeding was
adequate. United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir.
1992). “Before 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). A district court is not required to “replicate”
a trial, and need only to be “subjectively satisfied that there is
a sufficient factual basis for a conclusion that the defendant
committed all of the elements of the offense.” United States v.
Mitchell, 104 F.3d 649, 652 (4th Cir. 1997). The district court
possesses wide discretion in making such a determination and may
rely on any evidence in the record to conclude that a sufficient
factual basis exists. Id.; United States v. DeFusco, 949 F.2d 114,
120 (4th Cir. 1991).
During the Rule 11 hearing, the district court noted that
the plea agreement included a Statement of Facts, which Cline
stipulated were correct. In the Statement of Facts, Cline conceded
-3-
that although the license in question contained the disclaimer “NOT
A GOVERNMENT DOCUMENT” on the back, the New York Department of
Motor Vehicles (“New York DMV”) had concluded that the “format,
layout and features of the card looked similar to a genuinely-
issued New York state license.” The card contained a number of
features that the New York DMV uses to determine whether a license
is counterfeit, including a New York state seal, color blending,
and bar codes. The New York DMV concluded these features were
false authentication features, “as they appeared to be genuine but
were not.”
While Cline now contends the disclaimer on the license
negated any appearance of issuance by a state authority, her claim
is merely an attempt to refute her admissions at the Rule 11
hearing. The issue of the disclaimer was addressed in the
Statement of Facts, where Cline conceded that in spite of the
disclaimer, the New York DMV had concluded the license “looked
similar to a genuinely-issued New York state license.” By
conceding this fact, Cline provided the district court with
adequate evidence to conclude the licence qualified as a “false
identification document,” pursuant to § 1028(d)(4), as its
appearance was sufficiently similar to a genuine New York state
license.1 The district court was entitled to rely on Cline’s
1
Pursuant to 18 U.S.C.A. § 1028(a)(8), the evidence must
demonstrate that Cline “knowingly traffic[ked] in false or actual
authentication features for use in false identification documents
-4-
concession on this point, and Cline cannot be permitted to simply
retract an admission made under oath at the Rule 11 hearing. See
Bowman, 348 F.3d at 417.
Cline also contends that she could not have knowingly and
voluntarily pleaded guilty to a violation of 18 U.S.C.A. § 1028(a)
because it is unconstitutionally overbroad and vague. Because
Cline raised no challenge before the district court to the
constitutionality of the statute, her claims are reviewed for plain
error. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.
725, 731-32 (1993). Cline asserts the definitions of
“authentication feature,” pursuant to § 1028(d)(1), and “false
authentication feature,” pursuant to § 1028(d)(5)(C), are
unconstitutionally overbroad, as they could be interpreted to allow
prosecution of private clubs or organizations that use
authentication features in their identification cards. Cline
further contends § 1028(d)(5)(C) is unconstitutionally vague, as
the statute “fails to define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is
prohibited.”
While Cline raises a facial challenge to various
subsections of 18 U.S.C.A. § 1028, claims of statutory vagueness
. . . or means of identification.” The term “false identification
document” is defined as a “document of a type intended or commonly
accepted for purposes of identification of individuals that . . .
appears to be issued by or under the authority of . . . a State.”
18 U.S.C.A. § 1028(d)(4)(B).
-5-
that do not implicate the First Amendment “must be examined in the
light of the facts of the case at hand.” United States v. Sun, 278
F.3d 302, 309 (4th Cir. 2002) (quoting United States v. Mazurie,
419 U.S. 544, 550 (1975)). Furthermore, outside of the limited
context of the First Amendment, a criminal statute may not be
attacked as overbroad. See Schall v. Martin, 467 U.S. 253, 268
n.18 (1984); United States v. Morison, 844 F.2d 1057, 1075 (4th
Cir. 1988). Cline attempts to present her claim as a First
Amendment challenge by asserting the statute would have a chilling
effect on the association rights of organizations that use
identification cards with authentication features similar to those
employed in her cards. However, Cline fails to recognize that
prosecution under § 1028(a)(8) covers only the use of
authentication features in documentation that appears to be issued
by a governmental entity.2
Thus, because no First Amendment freedom is affected,
Cline’s overbreadth claim must fail. Further, Cline’s vagueness
attack on § 1028(a)(8) is confined to “the facts of the case at
hand.” Sun, 278 F.3d at 309. The court’s review is therefore
limited to whether Cline herself had fair notice that the statute
2
Under § 1028(d)(1), an “authentication feature” is defined as
a feature used by the “issuing authority” to determine whether the
document is counterfeit. Pursuant to § 1028(d)(6), an “issuing
authority” is limited specifically to governmental entities. See
also 18 U.S.C.A. § 1028(d)(4) (defining “false identification
document” as a false version of a document used for identification
that appears to be issued by a governmental agency).
-6-
proscribed her conduct. See United States v. Hsu, 364 F.3d 192,
196 (4th Cir. 2004). Citing § 1028(d)(5)(C), Cline contends the
term “false authentication feature” is not defined so that
“ordinary people can understand what conduct is prohibited,”
thereby encouraging “arbitrary and discriminatory enforcement.”
However, we find that, because all of the terms employed in
§ 1028(a) are specifically defined under § 1028(d), the language of
the statute prevents arbitrary enforcement and provided adequate
notice of the wrongfulness of Cline’s conduct. See United States
v. Klecker, 348 F.3d 69, 71 (4th Cir. 2003).
In addition, Cline conceded in the Statement of Facts
included in her plea agreement that all of her actions were
“knowing and deliberate, and were not committed by mistake,
accident, or other innocent reason.”3 Cline also admitted that she
supplied order forms to her customers requiring them to sign a
disclaimer certifying that they were not law enforcement agents.
Therefore, we hold that the language of 18 U.S.C.A. § 1028(a)(8)
was not unconstitutionally vague as applied to Cline. Accordingly,
we find that Cline has offered no credible evidence that her plea
was not knowing and voluntary.
3
Pursuant to § 1028(a)(8), a defendant must “knowingly
traffic[]” in false or actual authentication features for use in
false identification documents. See Vill. of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982) (scienter
requirement may mitigate vagueness of statute).
-7-
Cline next asserts, in regard to the second Moore factor,
that the district court erred in finding she had not asserted her
legal innocence. In attempting to withdraw from a guilty plea, a
defendant is not required to provide conclusive proof of innocence;
however, the defendant’s credible assertion of her legal innocence
is one of the factors the district court must consider. Moore, 931
F.2d at 248. Cline claims that, while she may have been unclear in
expressing her concerns about the plea, she sufficiently asserted
she was not guilty of the charge. We disagree. At the hearing on
her motion to withdraw the plea, Cline made a number of allegations
about the performance of her attorney and requested new counsel.
However, Cline made no clear statement claiming innocence of the
charged offense. While Cline expressed a desire to proceed to
trial and noted that she had contacted another attorney who felt
she had a “triable case,” she never stated she was innocent of the
charge under § 1028(a)(8), only that she had “enough proof . . .
not [to] get convicted of that.” Furthermore, even assuming
Cline’s statements could be held to constitute an assertion of
innocence, she has not demonstrated that her assertions were
credible.4 See United States v. Sparks, 67 F.3d 1145, 1153 (4th
4
While Cline notes she was denied an acceptance of
responsibility reduction even after the district court held that
she had not asserted a claim of legal innocence, the fact that a
defendant has entered a guilty plea does not entitle her to that
adjustment “as a matter of right.” U.S. Sentencing Guidelines
Manual (“USSG”) § 3E1.1, comment. (n.3) (2006). A defendant who
falsely denies or frivolously contests her relevant conduct has
-8-
Cir. 1995). Accordingly, the district court did not err in finding
that Cline made no credible assertion of innocence.
The third factor examined by the district court is
“whether there has been a delay between the entering of the plea
and the filing of the motion.” Moore, 931 F.2d at 248. The
district court found a delay between the entry of Cline’s plea and
the motion to withdraw her plea, noting she raised the matter on
“the eve of sentencing,” when the case was no longer ready for
trial. While Cline concedes there was a delay, she contends this
was due to her continuing efforts to obtain new representation.
However, Cline’s motion to appoint new counsel was filed more than
two months after her plea hearing. The delay in this case was
significant, as the motion to withdraw the plea was filed nearly
three months after Cline’s Rule 11 hearing and only three days
before her sentencing hearing. See Moore, 931 F.2d at 249.
Accordingly, this factor does not weigh in Cline’s favor.
The fourth Moore factor is whether the defendant had
close assistance of competent counsel. 931 F.2d at 248. A
defendant must demonstrate that counsel’s performance fell below an
objective standard of reasonableness and that, in the absence of
“acted in a manner inconsistent with acceptance of responsibility.”
USSG § 3E1.1, comment. (n.1(a)). Although Cline did not make a
credible claim of innocence in support of her motion to withdraw
her plea, the district court found she had still failed to fully
accept the illegality of her enterprise. Accordingly, there was no
incongruity in the district court’s rulings.
-9-
counsel’s errors, it was reasonably probable the defendant would
not have pled guilty and would have proceeded to trial. Bowman,
348 F.3d at 416 (citations omitted). On appeal, Cline contends
that her counsel failed to challenge the constitutionality of
§ 1028(a)(8), never inspected a large number of documents she gave
him, and merely reviewed the charges and possible mandatory minimum
sentence before convincing Cline to accept the plea agreement.
However, as we have held, the constitutional challenge lacked
merit, and Cline provided no evidence to support her other
allegations. Furthermore, Cline’s claims are contradicted by her
sworn statements at the Rule 11 hearing, during which she stated
she had sufficient time with her attorney to review her case and
her plea agreement and was satisfied with his efforts on her
behalf. See United States v. Ubakanma, 215 F.3d 421, 425 (4th Cir.
2000). Therefore, the district court properly found this factor
did not weigh in Cline’s favor.
The remaining two Moore factors are whether withdrawal
would prejudice the Government or inconvenience the court and waste
judicial resources. 931 F.2d at 248. While Cline notes there was
little evidence in the record regarding these factors, the lack of
demonstrated prejudice is not dispositive. See id. at 249. Even
if these factors weighed in Cline’s favor, they are not enough to
outweigh the countervailing factors that militate against granting
the motion to withdraw her plea. See Sparks, 67 F.3d at 1154.
-10-
Therefore, we find the district court properly assessed the Moore
factors and that its decision to deny Cline’s motion to withdraw
her guilty plea was not an abuse of discretion.
Accordingly, we affirm the judgment of the district
court. 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 in the decisional process.
AFFIRMED
-11-