US v. Kenneth Newman


UNPUBLISHED PER CURIAM OPINION filed. Originating case numbers: 3:14-cr-00050-1, 3:14-cr-00225-1. Copies to all parties and the district court. [999687575]. [15-4100]

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Appeal: 15-4100 Doc: 53 Filed: 10/28/2015 Pg: 1 of 7 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4100 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. KENNETH DEWITT NEWMAN, a/k/a K-Kutta, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, Chief District Judge. (3:14-cr-00050-1; 3:14-cr-00225-1) Submitted: September 29, 2015 Decided: October 28, 2015 Before DUNCAN, DIAZ, and FLOYD, Circuit Judges. Affirmed and remanded by unpublished per curiam opinion. John R. McGhee, Jr., KAY CASTO & CHANEY, PLLC, Charleston, West Virginia, for Appellant. R. Booth Goodwin, II, United States Attorney, R. Gregory McVey, Assistant United States Attorney, Huntington, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 15-4100 Doc: 53 Filed: 10/28/2015 Pg: 2 of 7 PER CURIAM: Kenneth Dewitt Newman appeals from his convictions sentence imposed pursuant to two guilty pleas. plea, the Government agreement based Government was obtained second a upon no successfully set After his first aside his failure to longer bound by the Newman’s cooperate. superseding plea indictment. and Because agreement, Newman then plea the it pled guilty to another charge in exchange for the dismissal of the charges against him in the second superseding indictment. On appeal, he asserts that the district court erred in denying his motion to withdraw his first guilty plea, that the court’s judgment contains a clerical error, and that incorrect grand jury testimony prejudiced him. We affirm Newman’s convictions and sentence, although we remand for correction of a clerical error. Newman asserts that he should have been permitted to withdraw his guilty plea because there was no meeting of the minds regarding portions of the agreement. After a district court accepts a guilty plea, but before sentencing, a defendant may withdraw his guilty plea if he “can show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d). Under the Rule, “the defendant bears the burden of demonstrating that withdrawal should be granted.” F.3d 224, 237 (4th Cir. 2007). United States v. Dyess, 478 We review the district court’s 2 Appeal: 15-4100 Doc: 53 denial of a discretion. Filed: 10/28/2015 motion to Pg: 3 of 7 withdraw a guilty plea for abuse of United States v. Nicholson, 676 F.3d 376, 383 (4th Cir. 2012). A nonexhaustive list of factors provides guidance regarding whether the defendant has met his burden to withdraw his plea: (1) whether the defendant has offered credible evidence that his plea was not knowing or not voluntary, (2) whether the defendant has credibly asserted his 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). The first, second, and fourth factors “speak most straightforwardly” to whether defendant has met his burden while the third, fifth, and sixth factors serve as “countervailing considerations” that establish how heavily the presumption weighs against permitting withdrawal. United States v. Sparks, 67 F.3d 1145, 1154 (4th Cir. 1995). Central to “resolving a motion to withdraw a guilty plea is an evaluation of the Rule 11 colloquy”; “a properly conducted Rule 11 guilty plea colloquy leaves a defendant with a very limited basis upon which to have his plea withdrawn.” Nicholson, 676 F.3d at 384 (internal quotation marks omitted). Regarding the first Moore factor, we conclude that Newman failed to establish that his plea was unknowing or involuntary. 3 Appeal: 15-4100 Doc: 53 Filed: 10/28/2015 Pg: 4 of 7 The district court substantially complied with Fed. R. Crim. P. 11 when accepting his plea. F.2d 114, defendant 116-17 is (4th informed See United States v. DeFusco, 949 Cir. of 1991) and (plea is understands voluntary nature of where charges, minimum and maximum penalties, and various rights surrendered by pleading guilty). On appeal, Newman does not challenge his Rule 11 colloquy in any way, and his colloquy creates the strong presumption that his plea was Nicholson, 676 F.3d at 384. knowing and voluntary. See Likewise, regarding the second and fourth factors, Newman has not pursued any claim that he is innocent or that counsel was ineffective. Newman solely on attempts what he withdraw his plea. to overcome contends are these “fair failures and by just” focusing reasons to Specifically, he asserts that (1) he did not understand his obligation to provide information about anyone other than himself and (2) he did not understand that he was unable to stipulated, later argue should that the lab the drug reports weight support was lower that than position. Newman produced no evidence supporting these “understandings,” which are directly contradicted by his plea agreement and his testimony at his plea hearing. In related arguments, Newman claims that the Government’s motion to set aside the plea agreement was based on the erroneous conclusion that Newman was not truthful during his 4 Appeal: 15-4100 Doc: 53 debriefing Filed: 10/28/2015 and that Pg: 5 of 7 subsequent plea agreements of his codefendants supported the veracity of the information he gave the Government. Further, he asserts that, had the Government accepted his debriefing, the original plea agreement would have gone forward charge. eliminating However, the the subsequent Government’s plea motion to on the set firearm aside the agreement was based on Newman’s undisputed refusal to provide any further cooperation to the Government. As Newman does not dispute the fact that he refused to cooperate (or, at least, continue to cooperate) with the Government, the district court did not abuse its discretion in granting the Government’s motion to set aside the agreement and denying Newman’s motion to withdraw his plea. Next, Newman contends that the district court’s judgment incorrectly describes the conduct to which he pled guilty. The judgment states that he pled guilty to distribution of a list of drugs. Rather than distribution, the indictment possession with intent to distribute the same drugs. charged However, at Newman’s guilty plea hearing, the parties agreed that, while he possessed all the drugs, he only had the intent to distribute cocaine. While the Government contends that the judgment merely tracked the drugs listed in the indictment, it does not dispute that the judgment incorrectly states that Newman was convicted 5 Appeal: 15-4100 of Doc: 53 Filed: 10/28/2015 distribution distribute. establish as opposed Pg: 6 of 7 to possession with intent to The Government also claims that Newman fails to any prejudice from the errors and that he should address these claims to the district court in the first instance in a Fed. R. Crim. P. 36 motion. We find that the interests of judicial economy weigh in favor of remand from this court for correction of the judgment to conform with Newman’s plea. Finally, Newman contends that certain grand jury testimony in support of a firearm count that was dismissed pursuant to Newman’s second plea agreement was incorrect. “When a defendant pleads guilty, he waives all nonjurisdictional defects in the proceedings conducted prior to entry of the plea.” States v. Bundy, 392 F.3d 641, 644 (4th Cir. 2004). plea represents a break in the chain preceded it in the criminal process. of events United “[A] guilty which has When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267 (1973). “Thus, defendant the non-jurisdictional ground who has upon which pled to guilty attack that has no judgment except the inadequacy of the plea or the government’s power to bring any indictment at all.” United States v. Moussaoui, 591 6 Appeal: 15-4100 F.3d Doc: 53 263, 279 Filed: 10/28/2015 (4th Cir. citations omitted). Pg: 7 of 7 2010) (internal quotation marks and Here, not only did the alleged error take place prior to either of Newman’s pleas, but the error actually concerned a dismissed count. Accordingly, this nonjurisdictional claim is waived. Thus, we affirm the district court’s judgment and remand for correction dispense with contentions are of the oral clerical argument adequately error in because presented in the the the judgment. facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED AND REMANDED 7

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