US v. Jerome Barnhart

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00270-AJT-1. Copies to all parties and the district court. [1000048427]. [16-4436]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4436

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEROME ROBERT BARNHART,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Anthony J. Trenga, District
Judge. (1:15-cr-00270-AJT-1)

Submitted:

February 13, 2017

Decided:

March 24, 2017

Before TRAXLER, KING, and DIAZ, Circuit Judges.

Affirmed in part; dismissed in part by unpublished per curiam
opinion.

Michael C. Sprano, THE SPRANO LAW FIRM, Fairfax, Virginia, for
Appellant.
Dana J. Boente, United States Attorney, Michael J.
Frank, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jerome

Robert

Barnhart

appeals

the

district

denying his motion to withdraw his guilty plea.

court

order

Barnhart also

appeals his sentence of 264 months of imprisonment for kidnapping,
in violation of 18 U.S.C. § 1201(a), (d) (2012).

We affirm in

part and dismiss in part.
We review for an abuse of discretion the denial of a motion
to withdraw a guilty plea.
376, 383 (4th Cir. 2012).

United States v. Nicholson, 676 F.3d
To withdraw a guilty plea before

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

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

“The

defendant bears the burden of demonstrating that withdrawal should
be granted.”

United States v. Thompson-Riviere, 561 F.3d 345, 348

(4th Cir. 2009) (alteration and internal quotation marks omitted).
Where the district court substantially complied with the Rule 11
requirements, the defendant must overcome a strong presumption
that his guilty plea is final and binding.

United States v.

Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc).
We have developed a nonexclusive list of factors for district
courts to consider when deciding whether the defendant has met
this burden:
(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
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motion to withdraw the plea; (4) whether the defendant
had
the
close
assistance
of
competent
counsel;
(5) whether withdrawal will cause prejudice to the
government;
and
(6) whether
[withdrawal]
will
inconvenience the court and waste judicial resources.
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).

The

first factor is perhaps the most important, as “the fairness of
the Rule 11 proceeding is the key factor in the review of the
denial of a motion to withdraw a guilty plea.”

United States v.

Wilson, 81 F.3d 1300, 1306 (4th Cir. 1996).
With
district

respect
court

to

did

the

not

first

abuse

factor,

its

we

conclude

discretion

Barnhart entered a knowing and voluntary plea.

in

that

finding

the
that

Barnhart claims

that he was pressured into pleading guilty by his attorneys.

Yet

there is no evidence, other than Barnhart’s assertion, suggesting
that Barnhart’s plea was not knowingly and voluntarily made.

Our

review of the record convinces us that the court conducted a
thorough Rule 11 proceeding.

Importantly, Barnhart acknowledged

that he had read and understood the plea agreement and confirmed
that nobody made any threats or promises to make him plead guilty.
Therefore, because Barnhart has failed to overcome “the strong
presumption that the plea is final and binding,” Lambey, 974 F.2d
at 1394, we conclude that the first factor weighs against allowing
Barnhart to withdraw his plea.
Our consideration of the remaining Moore factors reveals
nothing that would overcome this presumption.
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Barnhart has not

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offered a credible assertion of innocence, he does not attack the
competence of prior counsel, and his delay in filing the motion is
longer than a period of time we have previously considered “long.”
Moore, 931 F.2d at 248.
Barnhart as well.

The final two factors weigh against

Accordingly, we readily conclude that the

district court did not abuse its discretion in denying the motion
to withdraw.
Next, Barnhart contends the court erred by imposing certain
enhancements to his sentence.

The Government asserts this claim

is barred by Barnhart’s waiver of his right to appeal his sentence.
We review the validity of an appeal waiver de novo and “will
enforce the waiver if it is valid and the issue appealed is within
the scope of the waiver.”
182

(4th

Cir.

United States v. Adams, 814 F.3d 178,

2016).

“In

the

absence

of

extraordinary

circumstances, a properly conducted Rule 11 colloquy establishes
the validity of the waiver.”

Id.

As we previously stated, Barnhart’s Rule 11 colloquy was
properly conducted, and Barnhart knowingly and voluntarily agreed
to waive his appellate rights.

Consequently, we conclude that

Barnhart’s appellate waiver is valid, the Government has properly
invoked the waiver, and the sentencing claims fall within the
waiver’s scope.

Therefore, Barnhart’s claims that the district

court erred in sentencing him must be dismissed.

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Accordingly, we affirm the judgment of the district court in
part and dismiss Barnhart’s appeal in part.

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART

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