UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4308

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

NELSON EDDY BARHAM, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Columbia. Cameron McGowan Currie, District 

Judge. (3:09-cr-00309-CMC-2)

Submitted: December 16, 2010 Decided: January 21, 2011

Before KING, KEENAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Russell W. Mace, III, THE MACE FIRM, Myrtle Beach, South 

Carolina, for Appellant. William N. Nettles, United States 

Attorney, James C. Leventis, Jr., Assistant United States 

Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Nelson Eddy Barham, Jr., was convicted, following his 

guilty plea, of conspiracy to launder the proceeds of an 

unlawful activity (cocaine distribution), in violation of 18 

U.S.C. § 1956(h) (2006) (“Count One”), and knowingly and 

intentionally permitting the storage, distribution, and use of 

cocaine in his place of business, in violation of 21 U.S.C. 

§ 856(a)(2) (2006) (“Count Eight”). On appeal, Barham asserts 

that there was an insufficient factual basis to support his 

guilty plea to Count One and that the district court abused its 

discretion in denying his motion to withdraw his guilty plea. 

For the following reasons, we reject these arguments and affirm.

Barham’s indictment stemmed from his involvement in a 

money laundering transaction. Acting on behalf of Robert 

Garrick, Barham’s business partner and an admitted drug dealer, 

Barham negotiated for Garrick to purchase a strip club. Garrick 

used drug proceeds to pay one of the club owners $190,000.00 in 

cash. This aspect of the sale went unreported. Barham contends 

there was an insufficient factual basis as to Count One because, 

during the Federal Rule of Criminal Procedure 11 colloquy, he 

denied knowing that the purchase money came from cocaine 

distribution or that the intent of the transaction was to avoid 

various reporting requirements. 
3

Rule 11(b)(3) provides that “[b]efore entering 

judgment on a guilty plea, the court must determine that there 

is a factual basis for the plea.” As we have explained, “[t]he 

rule is intended to ensure that the court make clear exactly 

what a defendant admits to, and whether those admissions are 

factually sufficient to constitute the alleged crime.” United 

States v. Mastrapa, 509 F.3d 652, 659-60 (4th Cir. 2007) 

(internal quotation marks omitted). In making a Rule 11(b)(3) 

determination, the district court has broad discretion and need 

not conduct a trial; moreover, the court is not constrained to 

rely only on the plea colloquy, but may conclude that a factual 

basis exists from anything that appears on the record. United 

States v. Ketchum, 550 F.3d 363, 366-67 (4th Cir. 2008); see 

also United States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991) 

(noting that Rule 11 does not require the district court to 

establish through its colloquy that a factual basis exists for 

the plea). The district court “need only be subjectively 

satisfied that there is a sufficient factual basis for a 

conclusion that the defendant committed all of the elements of 

the offense.” United States v. Mitchell, 104 F.3d 649, 652 (4th 

Cir. 1997). 

We have carefully reviewed the record and conclude 

there was ample support for the district court’s factual basis 

determination. First and foremost, in his plea agreement,
4

Barham stipulated to knowing or believing that the purchase 

money was “the proceeds of an offense involving the distribution 

of a controlled substance.” At no point in the proceedings did 

Barham challenge this stipulation. Moreover, Barham’s 

presentence report (“PSR”) detailed his knowledge of the source 

of the laundered funds, and Barham did not pursue his objection 

to that portion of the PSR. Further, Barham’s testimony at the 

Rule 11 hearing squarely belies his contention that there was 

insufficient support for the court’s finding that he knew the 

purpose of the transaction was to conceal the funds and to avoid 

reporting requirements. Accordingly, we hold the district court 

properly determined there was a factual basis for the guilty 

plea as to Count One. See DeFusco, 949 F.2d at 120. 

Barham also maintains the district court erred by 

denying his motion to withdraw his plea. We review a denial of 

a motion to withdraw a guilty plea for an abuse of discretion. 

United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). 

In determining whether the trial court abused its discretion in 

denying such a motion, this court considers the six factors 

articulated in United States v. Moore, 931 F.2d 245, 248 (4th 

Cir. 1991). These factors include whether: (1) the defendant 

has offered credible evidence that his plea was not knowing or 

not voluntary; (2) the defendant has credibly asserted his legal 

innocence; (3) there has been a delay between the entering of 
5

the plea and the filing of the motion; (4) the defendant has had 

close assistance of competent counsel; (5) the withdrawal will 

cause prejudice to the government; and (6) the withdrawal will 

inconvenience the court and waste judicial resources. Id. 

We have reviewed the district court’s analysis of and 

findings on this issue, and conclude the court did not abuse its 

discretion in denying Barham’s motion. Barham offered no 

evidence that his plea was not knowing or voluntary, and he did 

not credibly assert his legal innocence. Accordingly, we reject 

Barham’s challenge to the disposition of this motion. 

For these reasons, we affirm the district court’s 

denial of Barham’s motion to withdraw his guilty plea and the 

criminal judgment. We dispense with oral argument because the 

facts and legal contentions are adequately presented in the 

materials before the court and argument would not aid the 

decisional process. 

AFFIRMED