Alice McCabe v. Michael Parker

1North Carolina v. Alford, 400 U.S. 25 (1970).
2The Honorable Joseph F. Bataillon, Chief Judge, United States District Court
for the District of Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3946
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Stanley Walker Harris, *
* [UNPUBLISHED]
Appellant. *
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Submitted: May 10, 2010
Filed: June 21, 2010
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Before WOLLMAN, SMITH, and COLLOTON, Circuit Judges.
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PER CURIAM.
Stanley Walker Harris entered an Alford1 plea to one count of Social Security
fraud as part of a plea agreement that included a waiver of the right to withdraw the
plea. At the sentencing hearing, the district court 2 denied Harris’s motion to withdraw
his plea. Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), the district
court imposed the parties’ agreed-upon sentence of one year and one day. The district

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court also imposed three years of supervised release and ordered Harris to pay
$37,783.99 in restitution. Harris appeals, arguing that the district court erred in not
allowing him to withdraw his plea. He claims (1) that his waiver was not knowing or
voluntary, and (2) that the possibility of restitution highlighted in the presentence
investigation report was a fair and just reason to withdraw the plea. We affirm.
If made knowingly and voluntarily, a defendant’s waiver of his right to
withdraw his plea will be enforced. See United States v. Stricklin, 342 F.3d 849, 850
(8th Cir. 2003) (per curiam); cf. United States v. Andis, 333 F.3d 886, 889-90 (8th
Cir. 2003) (waiver of appellate rights). Whether Harris knowingly and voluntarily
waived his right to withdraw his plea is a legal question that we review de novo. See
United States v. Quiroga, 554 F.3d 1150, 1155 (8th Cir. 2009); United States v.
Swick, 262 F.3d 684, 686 (8th Cir. 2001).
Paragraph eleven of the plea agreement reads: “By signing this agreement, the
Defendant waives the right to withdraw the Defendant’s plea of guilty pursuant to
Federal Rule of Criminal Procedure 11(d).” The district court conducted a plea
colloquy in which Harris acknowledged that he had read the plea agreement, reviewed
it with his attorney, signed it, entered into it of his own free will, and understood the
terms and conditions of the agreement. Harris actively participated during the plea
colloquy, asking questions and voicing concerns about his attorney’s performance.
The district court informed Harris that “[a]fter I accept your guilty plea, there is no
going back.” After raising several additional concerns, Harris entered his plea.
We conclude that Harris knowingly and voluntarily entered into the plea
agreement and waived his right to withdraw the plea. Accordingly, we need not
consider Harris’s contention that the possibility of restitution constituted a fair and
just reason to withdraw his plea, because such a claim is dependent upon the absence
of a valid waiver. Furthermore, the record belies Harris’s claim that he was unaware
of the possibility that he might be ordered to make restitution. In his petition to enter

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a plea of guilty, Harris responded affirmatively to the question, “Do you realize that,
if you plead GUILTY, the judge may require you to make restitution to any victim of
the offense?”
The judgment is affirmed.
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