US v. Shawn Schenck

Filing

UNPUBLISHED PER CURIAM OPINION filed.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. [1000025588]. [16-4303]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4303

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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)

Submitted:

February 9, 2017

Decided:

February 17, 2017

Before MOTZ and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Dismissed in part; affirmed in part by unpublished per curiam
opinion.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Shawn

Schenck

pled

guilty,

pursuant

to

a

written

plea

agreement, to a criminal information charging that he engaged in
a

continuing

criminal

§ 848(a) (2012).

enterprise,

in

violation

of

21

U.S.C.

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
imposing

a

276-month

sentence.

The

Government

has

moved

to

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
[are]

within

the

scope

of

the

waiver.”

United

States

v.

Copeland, 707 F.3d 522, 528 (4th Cir. 2013) (internal quotation
marks

omitted).

Schenck

challenges

the

waiver’s

insofar as he contests the validity of the plea itself.

validity
Because

Schenck preserved this issue by moving in the district court to
withdraw his guilty plea, we evaluate the Fed. R. Crim. P. 11

2

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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
properly

ensured

voluntary,

and

that

Schenck’s

supported

by

guilty

a

plea

sufficient

was
factual

Accordingly, we conclude that the plea was valid.
States

v.

DeFusco,

949

F.2d

114,

116

knowing,

(4th

basis.

See United
Cir.

1991).

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.
However,
foreclose

a

Schenck’s
challenge

to

valid
the

appellate

district

waiver

court’s

does

denial

of

not
his

motion to withdraw his guilty plea on the basis of the plea’s
validity.

See United States v. Johnson, 410 F.3d 137, 151 (4th

Cir. 2005).

We review the district court’s denial for abuse of

discretion.

United States v. Nicholson, 676 F.3d 376, 383 (4th

Cir. 2012).

To withdraw a guilty plea prior to sentencing, a

defendant must “show a fair and just reason for requesting the
withdrawal.”
district

Fed. R. Crim. P. 11(d)(2)(B).

court

complied

with

the
3

Rule

11

Where, as here, the
requirements,

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.

In

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).
We

have

carefully

reviewed

considering

Nicholson, 676 F.3d at 384.

the

record

the

Moore

in

this

factors

case
and

and,

the

after

parties’

arguments, conclude that the district court did not abuse its
discretion in denying Schenck’s motion to withdraw his guilty
plea.

Accordingly, we dismiss the appeal in part and affirm in

part.

We dispense with oral argument because the facts and

legal
before

contentions
this

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
DISMISSED IN PART;
AFFIRMED IN PART

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