In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3882

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT E. HOKE,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 4:06-cr-40058-JPG-1—J. Phil Gilbert, Judge.

ARGUED APRIL 7, 2009—DECIDED JUNE 25, 2009

Before POSNER, RIPPLE and WOOD, Circuit Judges.

RIPPLE, Circuit Judge. Robert Hoke was indicted for

the receipt and possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(a)(5)(B).

After the Government rested its case, Mr. Hoke pleaded

guilty to both counts. He later moved to withdraw his

guilty plea, but the district court denied his motion. The

court sentenced Mr. Hoke to 121 months’ imprisonment

and five years’ supervised release. In this appeal, Mr. Hoke
2 No. 08-3882

contends that the court abused its discretion by not

allowing him to withdraw his guilty plea. He also

claims that the district court denied him his right of

allocution in violation of Federal Rule of Criminal Procedure 32(i)(4)(A). For the reasons set forth in this

opinion, we affirm the judgment of the district court.

A. Motion to Withdraw Guilty Plea

1.

On January 8, 2008, Mr. Hoke was charged with receipt

of child pornography and possession of child pornography.

A jury trial commenced on June 16, 2008, and the Government rested its case the following day. After Mr. Hoke

heard all of the evidence against him, he pleaded guilty

to both counts. Before accepting the plea, the district

court advised and questioned Mr. Hoke as required by

Rule 11(b)(1) of the Federal Rules of Criminal Procedure.

The district court placed Mr. Hoke under oath and questioned him to ensure that he understood English and

that he was satisfied with his representation. The court

went through each count of the indictment and, although

the Government already had presented its evidence

during its case-in-chief, required the prosecutor to state,

with respect to each count, the evidence upon which

the Government relied. The court also assured itself

that Mr. Hoke understood the length of the sentence

he could receive and the conditions governing his subsequent release. The court also advised him of the

rights that he could exercise if he elected to proceed with

the trial. With regard to sentencing, the court told
No. 08-3882 3

Mr. Hoke did not explain the nature of this “technical de- 1

fense” at his hearing.

Mr. Hoke that the United States Sentencing Guidelines

are advisory and that it would consider the Guidelines,

any statutory mandatory minimum and the factors enumerated under 18 U.S.C. § 3553(a). Throughout the

process, the court ensured that Mr. Hoke understood the

advice given to him. After verifying that no threats or

promises had been made to Mr. Hoke and determining

that his plea was a “free and voluntary act,” the court

accepted his guilty plea. R.94 at 8.

On August 18, Mr. Hoke wrote a letter to the court

seeking to withdraw his plea of guilty. Two days later,

Mr. Hoke’s attorney moved to withdraw as counsel;

the district court granted the motion and appointed

new counsel. On October 1, Mr. Hoke moved to withdraw his guilty plea under Federal Rule of Criminal

Procedure 11(d)(2)(B).

At a subsequent hearing, Mr. Hoke maintained that

his plea was not made knowingly because he was

confused about the nature of the proceedings and

because he was innocent of the charges under a “technical

defense.” Mr. Hoke claimed that his plea was coerced

1

by his former attorney and that the attorney had told

him that his computer expert could not testify. Mr. Hoke

also said that he had looked to his attorney for direction

on how to answer most of the court’s questions at the

plea hearing. By contrast, the former attorney testified

that he did not instruct Mr. Hoke how to answer the

questions and that, had they proceeded with the trial, he
4 No. 08-3882

would have called Mr. Hoke’s computer expert to testify.

The Government questioned Mr. Hoke, who admitted to

having no mental defects and to being clear-minded on

the day that he pleaded guilty.

The court found that Mr. Hoke had not been prompted

by his attorney when he answered its questions and also

found that, during the hearing, Mr. Hoke had understood

the consequences of his actions when he pleaded guilty.

The court therefore denied his motion to withdraw

his plea.

2.

We review the court’s denial of Mr. Hoke’s motion to

withdraw his guilty plea for an abuse of discretion. See

United States v. Bowlin, 534 F.3d 654, 659 (7th Cir. 2008).

Mr. Hoke submits that the court erred in denying his

motion to withdraw his guilty plea because he had a

valid technical defense, which his prior attorney had

failed to raise. He further maintains that he was “stressed

and confused about the various proceedings leading up

to the plea of guilty.” Appellant’s Br. 10.

The district court did not abuse its discretion in

denying Mr. Hoke’s motion to withdraw his plea.

Mr. Hoke did not show “a fair and just reason for requesting the withdrawal.” United States v. Bryant, 557

F.3d 489, 495 (7th Cir. 2009) (quoting Fed. R. Crim. P.

11(d)(2)(B)). He claims that he is legally innocent because

of a “technical defense.” However, “claims of innocence

alone do not mandate permission to withdraw a plea,” but,

rather, must be substantiated by evidence. United States
No. 08-3882 5

v. Groll, 992 F.2d 755, 758 (7th Cir. 1993). Furthermore,

Mr. Hoke has not shown that, at the time of his plea,

he was unaware of the technical defense which he now

invokes. See Bryant, 557 F.3d at 495 (holding that the

district court’s denial of the defendant’s motion to withdraw his plea was not an abuse of discretion because

the defendant did not present newly discovered

evidence relating to his factual guilt or innocence, and

he did not discover a new legal defense after he

pleaded guilty). Consequently, Mr. Hoke has not established that a fair and just reason for withdrawal exists.

Mr. Hoke claims that he was confused about the proceedings leading up to his plea of guilty. We have held,

however, that “[t]he only rational manner in which a

judge may determine whether a plea is knowingly and

voluntarily made, is to observe the defendant’s demeanor

and responses to the court’s questions and to rely on the

defendant’s sworn answers.” United States v. Ellison, 835

F.2d 687, 693 (7th Cir. 1987). The district court had the

opportunity to question and observe Mr. Hoke during

his motion to withdraw plea hearing; it did not find

that Mr. Hoke was confused or unaware of the nature

of his actions at that time. We therefore believe that the

court did not abuse its discretion in denying Mr. Hoke’s

motion to withdraw his guilty plea.

B. Right of Allocution

1.

Mr. Hoke’s sentencing hearing was held on November 7, 2008. Prior to Mr. Hoke’s allocution, the court
6 No. 08-3882

addressed an objection raised by the Government regarding the presentence investigation report (“PSR”). The

Government maintained that the PSR should have

advised a two-level enhancement for obstruction of

justice because, it alleged, Mr. Hoke had made false

statements during the hearing for his motion to withdraw his guilty plea. The court stated that it was not

going to apply the obstruction of justice enhancement,

but told the Government that “even though it’s not applying the enhancement, [it] will be taking into account

his testimony when it issues its sentence, which will be

within the advisory guideline range. . . .” R.123 at 5.

The court then explained its guidelines-range

findings and asked whether either side had any objections. Mr. Hoke’s attorney replied that he would be

objecting to the Guidelines as a whole, and he noted that

the court is not bound by the Guidelines. The court acknowledged that the Guidelines are advisory and then

noted that it would consider “the [section] 3553(a) factors

as well as the advisory guidelines in issuing its decision

on the appropriate sentence.” Id. at 7. Mr. Hoke then

presented mitigating statements from several witnesses, and his attorney argued that he should receive

the mandatory minimum sentence of sixty months.

After the attorneys for both sides had spoken, the

court directed Mr. Hoke to stand, and asked: “Is there

anything you wish to say or offer in mitigation before

this Court imposes sentence?” Id. at 26. Mr. Hoke replied

that he had health problems. He admitted to looking

at adult pornography, but denied ever looking at child
No. 08-3882 7

pornography. The court then sentenced Mr. Hoke to 121

months’ imprisonment for Count 1 and 120 months’

imprisonment for Count 2, to run concurrently,

followed by five years of supervised release.

2.

Because Mr. Hoke raised no objection regarding his

right of allocution at the district court level, we review

only for plain error. See United States v. Luepke, 495 F.3d

443, 446 (7th Cir. 2007); Fed. R. Crim. P. 52(b). “Plain

error review requires us to determine: (1) that error

occurred; (2) that the error was plain; and (3) that the

error affected the defendant’s substantial rights.” Luepke,

495 F.3d at 448. “If these criteria are met, we may

reverse, in an exercise of discretion, if we determine

that the error ‘seriously affects the fairness, integrity, or

public reputation of judicial proceedings.’ ” Id. (quoting

United States v. Simpson, 479 F.3d 492, 496 (7th Cir. 2007)).

Mr. Hoke submits that the district court foreclosed

any possibility of a below-guidelines sentence, prior to

his opportunity to address the court, when it stated that

his sentence would be “within the advisory guideline

range.” R.123 at 5. Mr. Hoke therefore contends that

the court violated his right of allocution and maintains

that the violation was not cured when the court later

allowed him to present witnesses and to personally

address the court. See Luepke, 495 F.3d at 452; Fed. R.

Crim. P. 32(i)(4).

Federal Rule of Criminal Procedure 32(i)(4)(A), which

codifies the common law right of allocution, states
8 No. 08-3882

that, prior to imposing a sentence, the court must

“address the defendant personally in order to permit the

defendant to speak or present any information to

mitigate the sentence.” In Green v. United States, 365

U.S. 301, 304 (1961) (plurality opinion), the Supreme

Court interpreted an earlier version of this rule and

held that a defendant must be afforded the opportunity

to personally address the court. The Court stated that

district courts should “unambiguously address themselves to the defendant” and “should leave no room

for doubt that the defendant has been issued a personal

invitation to speak prior to sentencing.” Id. at 305.

We must consider the district court’s statement

regarding sentencing Mr. Hoke under the Guidelines in

the context in which it was made. During the sentencing hearing, the Government objected to the PSR,

maintaining that Mr. Hoke should have received an

obstruction of justice enhancement for making false

statements. The court declined to apply the enhancement and explained that it would “be taking into

account his testimony when it issues its sentence, which

will be within the advisory guideline range . . . .” R.123

at 5.

When read in context, it is evident that the district court

was merely communicating that it would use the Guidelines as its baseline, as opposed to the elevated sentencing

range that the Government sought. After the court

stated its intent, Mr. Hoke’s attorney quickly noted that

he would be challenging the applicability of the Guidelines and stated that the court was not bound by them.
No. 08-3882 9

This case is not controlled by United States v. Luepke, 495 F.3d 2

443 (7th Cir. 2007). In Luepke, the district court announced a

specific sentence and committed the defendant to the Bureau

of Prisons prior to allocution. Id. at 445. After announcing the

sentence in “seemingly conclusive terms,” the court stated

“[b]efore imposing any sentence in this matter I will call upon

the defendant for those matters which he would like to bring

to the Court’s attention.” Id. (citation omitted, emphasis in

original). We held that the court had committed plain error

by imposing a sentence before affording the defendant an

opportunity to speak and observed that “the defendant had

little incentive to share his thoughts on the matter of a sentence that he had every reason to believe had already been

decided.” Id. at 450.

The court agreed, noting that the Guidelines “are advisory.” R.123 at 7. It further stated that it would be “considering [section] 3553(a) factors as well as the advisory

guidelines in issuing its decision on the appropriate

sentence.” Id. In this colloquy with counsel, the court

expressed clearly that it had not reached a conclusive

decision regarding Mr. Hoke’s sentence and that it

would consider the relevant sentencing factors and the

advisory nature of the Guidelines. The court, moreover,

gave Mr. Hoke an opportunity to present witnesses and

invited him to address the court. We conclude that the

court did not deny Mr. Hoke his right of allocution

and, therefore, did not commit plain error.2
10 No. 08-3882

Conclusion

For the foregoing reasons, the judgment of the district

court is affirmed.

AFFIRMED

6-25-09