US v. Shawn Schenck
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting (in part) Motion to dismiss appeal [999981000-2]. Originating case number: 7:15-cr-00002-H-1. Copies to all parties and the district court. . [16-4303]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
SHAWN SCHENCK, a/k/a AR, a/k/a Shawn Humbert,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington.
Malcolm J. Howard,
Senior District Judge. (7:15-cr-00002-H-1)
February 9, 2017
February 17, 2017
Before MOTZ and HARRIS, Circuit Judges, and HAMILTON, Senior
Dismissed in part; affirmed in part by unpublished per curiam
Hannah Rogers Metcalfe, METCALFE & ATKINSON, LLC, Greenville,
South Carolina, for Appellant.
Jennifer P. May-Parker, Phillip
Anthony Rubin, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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agreement, to a criminal information charging that he engaged in
§ 848(a) (2012).
Prior to sentencing, Schenck moved to withdraw
his guilty plea, asserting that his plea was neither voluntary
nor supported by a sufficient factual basis.
The district court
denied Schenck’s motion and sentenced Schenck to a term of 276
months in prison.
Schenck timely appeals.
On appeal, Schenck challenges whether a sufficient factual
basis supported his guilty plea, and contends that the district
court erred in denying his motion to withdraw his plea and in
dismiss the appeal on the basis of Schenck’s waiver of the right
to appeal his conviction and sentence.
“We review the validity of an appeal waiver de novo, and
will enforce the waiver if it is valid and the issue[s] appealed
Copeland, 707 F.3d 522, 528 (4th Cir. 2013) (internal quotation
insofar as he contests the validity of the plea itself.
Schenck preserved this issue by moving in the district court to
withdraw his guilty plea, we evaluate the Fed. R. Crim. P. 11
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proceedings for harmless error.
United States v. Bradley, 455
F.3d 453, 461 (4th Cir. 2006); see Fed. R. Crim. P. 11(h).
Our review of the record reveals that the district court
Accordingly, we conclude that the plea was valid.
Similarly, we conclude that Schenck knowingly and voluntarily
waived the right to appeal his sentence, see United States v.
Manigan, 592 F.3d 621, 627 (4th Cir. 2010), except for claims of
ineffective assistance or prosecutorial misconduct not known to
Schenck at the time of his guilty plea.
We therefore grant in
part the Government’s motion to dismiss and dismiss Schenck’s
challenge to the reasonableness of his sentence.
motion to withdraw his guilty plea on the basis of the plea’s
See United States v. Johnson, 410 F.3d 137, 151 (4th
We review the district court’s denial for abuse of
United States v. Nicholson, 676 F.3d 376, 383 (4th
To withdraw a guilty plea prior to sentencing, a
defendant must “show a fair and just reason for requesting the
Fed. R. Crim. P. 11(d)(2)(B).
Where, as here, the
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defendant must overcome a strong presumption that his guilty
plea is final and binding.
Nicholson, 676 F.3d at 384.
deciding a plea-withdrawal motion, the district court considers
the nonexclusive factors set forth in United States v. Moore,
931 F.2d 245 (4th Cir. 1991).
Nicholson, 676 F.3d at 384.
arguments, conclude that the district court did not abuse its
discretion in denying Schenck’s motion to withdraw his guilty
Accordingly, we dismiss the appeal in part and affirm in
We dispense with oral argument because the facts and
DISMISSED IN PART;
AFFIRMED IN PART
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