UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4241

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MATTHEW J. MUSANTE,

Defendant - Appellant.

No. 15-4247

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MATTHEW J. MUSANTE,

Defendant - Appellant.

Appeals from the United States District Court for the Western 

District of North Carolina, at Charlotte. Robert J. Conrad, 

Jr., District Judge. (3:13-cr-00193-RJC-1; 3:12-cr-00386-RJC-4)

Submitted: February 29, 2016 Decided: March 9, 2016

Before AGEE, KEENAN, and DIAZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.

M. Gordon Widenhouse, Jr., RUDOLF WIDENHOUSE & FIALKO, Chapel 

Hill, North Carolina, for Appellant. Jill Westmoreland Rose, 

United States Attorney, Amy E. Ray, Assistant United States 

Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Matthew J. Musante was charged with conspiracy to commit 

insider trading, in violation of 18 U.S.C. § 371 (2012), and

transactional money laundering, in violation of 18 U.S.C. § 1957 

(2012). (J.A. 30). Musante entered a guilty plea, but 

subsequently moved to withdraw his plea, arguing that a 

recently-decided Second Circuit case, United States v. Newman, 

773 F.3d 438 (2d Cir. 2014), cert. denied, 136 S. Ct. 242 

(2015), suggested a defense to the conspiracy charge of which he 

had not been informed. The district court denied his motion. 

We affirm.

We review for an abuse of discretion the denial of a motion 

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

376, 383 (4th Cir. 2012). 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) (brackets and internal quotation marks 

omitted). Where, as here, 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). 
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In deciding a motion to withdraw a guilty plea, the 

district court must consider the following six factors:

(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 the defendant has 

had 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 (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). It is this factor 

on which Musante places the balance of his argument.*

Musante argues that he should be allowed to withdraw his 

plea because his guilty plea to the charge of conspiracy to 

commit insider trading was not knowing and voluntary, as he was 

not informed of a possible defense based on his ignorance of any 

benefit to the “insider” from the information improperly 

disclosed. The district court rejected this argument, 

concluding, in essence, that the factual basis for the plea 

 * Musante also argues that the district court erred in 

assessing the third and fifth Moore factors, but these factors, 

even if decided in Musante’s favor, would not affect our 

decision.
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would not support the defense recognized in Newman. Our review 

of the record convinces us that the district court did not abuse 

its discretion in so concluding. 

Accordingly, we affirm the district court’s ruling denying 

the motion to withdraw the guilty plea. 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