United States of America v. Kenneth Dewitt Newman, a/k/a K-Kutta

UNPUBLISHED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Affirmed and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 and
sentence imposed pursuant to two guilty pleas. After his first
plea, the Government successfully set aside Newman’s plea
agreement based upon his failure to cooperate. Because the
Government was no longer bound by the plea agreement, it
obtained a second superseding indictment. Newman then 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.” United States v. Dyess, 478
F.3d 224, 237 (4th Cir. 2007). We review the district court’s

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denial of a motion to withdraw a guilty plea for abuse of
discretion. 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. See United States v. DeFusco, 949
F.2d 114, 116-17 (4th Cir. 1991) (plea is voluntary where
defendant is informed of and understands nature of 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 knowing and voluntary. See
Nicholson, 676 F.3d at 384. Likewise, regarding the second and
fourth factors, Newman has not pursued any claim that he is
innocent or that counsel was ineffective.
Newman attempts to overcome these failures by focusing
solely on what he contends are “fair and just” reasons to
withdraw his plea. 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 later argue that the drug weight was lower than
stipulated, should the lab reports support that 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 and that 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 eliminating the subsequent plea on the firearm
charge. However, the Government’s motion to set 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 charged
possession with intent to distribute the same drugs. 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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of distribution as opposed to possession with intent to
distribute. The Government also claims that Newman fails to
establish 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.” United
States v. Bundy, 392 F.3d 641, 644 (4th Cir. 2004). “[A] guilty
plea represents a break in the chain of events which has
preceded it in the criminal process. 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, the defendant who has pled guilty has no
non-jurisdictional ground upon which to attack that 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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F.3d 263, 279 (4th Cir. 2010) (internal quotation marks and
citations omitted). 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 of the clerical error in the judgment. 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 AND REMANDED

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