US v. Kenneth Newman
Filing
UNPUBLISHED PER CURIAM OPINION filed.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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UNPUBLISHED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Affirmed and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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
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denial
of
a
discretion.
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motion
to
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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.
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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
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debriefing
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and
that
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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
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distribution
distribute.
establish
as
opposed
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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
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263,
279
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(4th
Cir.
citations omitted).
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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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