UNPUBLISHED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Dismissed in part; affirmed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shawn Schenck pled guilty, pursuant to a written plea
agreement, to a criminal information charging that he engaged in
a continuing criminal enterprise, in violation of 21 U.S.C.
§ 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
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 validity
insofar as he contests the validity of the plea itself. Because
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
properly ensured that Schenck’s guilty plea was knowing,
voluntary, and supported by a sufficient factual basis.
Accordingly, we conclude that the plea was valid. See United
States v. DeFusco, 949 F.2d 114, 116 (4th 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, Schenck’s valid appellate waiver does not
foreclose a challenge to the district court’s denial of 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.” Fed. R. Crim. P. 11(d)(2)(B). Where, as here, the
district court complied with the Rule 11 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). Nicholson, 676 F.3d at 384.
We have reviewed the record in this case and, after
carefully considering the Moore factors and the 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 contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
DISMISSED IN PART;
AFFIRMED IN PART
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