UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-4027

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LARRY LAVONNE BERRY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at 

Raleigh. Louise W. Flanagan, District Judge. (5:08-cr-00247-FL-1)

Submitted: September 27, 2017 Decided: October 4, 2017

Before WILKINSON, KING, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis C. Allen, Acting Federal Public Defender, Eric J. Brignac, Assistant Federal Public 

Defender, Raleigh, North Carolina, for Appellant. John Stuart Bruce, United States 

Attorney, Jennifer P. May-Parker, First Assistant United States Attorney, Seth Morgan 

Wood, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

In 2008, Larry Levonne Berry pled guilty, pursuant to a plea agreement, to bank 

robbery with a dangerous weapon and aiding and abetting, in violation of 18 U.S.C. §§ 2, 

2113(d) (2006); using and carrying a firearm during an armed bank robbery and aiding 

and abetting, in violation of 18 U.S.C. §§ 2, 924(c) (2006); Hobbs Act Robbery, in 

violation of 18 U.S.C. § 1951 (2006); and possession of a firearm by a convicted felon, in 

violation of 18 U.S.C. § 922(g)(1) (2006) (felon in possession conviction), and he was 

sentenced to 302 months in prison. On appeal, we determined that Berry knowingly and 

voluntarily waived his right to appeal his sentence, and because neither counsel nor Berry 

raised any issues outside the scope of the appellate waiver in Berry’s plea agreement, we 

enforced the waiver and granted the Government’s motion to dismiss as to Berry’s 

within-Guidelines sentence. We nonetheless affirmed the criminal judgment, in part, 

because, after conducting an Anders* review, we discerned no unwaived meritorious 

grounds for appeal. See United States v. Berry, 446 F. App’x 661, 662 (4th Cir. 2011) 

(No. 11-4272). Berry’s 28 U.S.C. § 2255 (2012) motion was denied by the district court, 

and we denied a certificate of appealability and dismissed Berry’s appeal. See United 

States v. Berry, 598 F. App’x 205 (4th Cir. 2015) (No. 14-7636). 

The Supreme Court later vacated this court’s judgment dismissing Berry’s habeas 

motion, and remanded the case for further consideration in light of Johnson v. United 

States, __ U.S. __, 135 S. Ct. 2551 (2015), see Berry v. United States, 136 S. Ct. 417 

 * Anders v. California, 386 U.S. 738 (1967).
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(2015), and we remanded the matter to the district court. On remand, the district court 

appointed Berry counsel and granted Berry’s § 2255 motion after determining that, under 

Johnson, Berry was no longer an armed career criminal for purposes of his felon in 

possession conviction. The district court resentenced Berry to 258 months in prison, with 

credit for time served. 

Berry again appeals to this court, asking that we vacate his guilty plea. As support 

for his request, Berry asserts that he recently discovered that his girlfriend at the time he 

pled guilty was having an affair with an agent involved in the criminal investigation 

against him. Thus, Berry asserts that his guilty plea was unknowing because, had he 

known of the romantic relationship, he would have proceeded to trial and tried to 

impeach his girlfriend’s testimony against him as biased. We decline Berry’s request to 

vacate his guilty plea.

The parties concede that because Berry did not raise this claim in the district court, 

we need only review Berry’s assignment of error for plain error. See Fed. R. Crim. P. 

52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993); see also United States v. 

Martinez, 277 F.3d 517, 524 (4th Cir. 2002) (holding that “[b]ecause [defendant] did not 

seek to withdraw his guilty plea in the district court, we review his alleged [Fed. R. Crim. 

P.] 11 errors under the standard applicable to forfeited error, i.e., assertions of error raised 

for the first time on appeal”). To establish plain error, Berry must show that an error 

occurred, that the error was plain, and that the error affected his substantial rights. See 

Olano, 507 U.S. at 732; see also United States v. Dominguez Benitez, 542 U.S. 74, 83 

(2004) (holding that in the guilty plea context, an error affects substantial rights if there is 
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“a reasonable probability that, but for the error, [the defendant] would not have entered 

the plea”). Even if Berry makes this showing, correction of the error remains within our 

discretion, which “should not [be] exercise[d] . . . unless the error seriously affects the 

fairness, integrity or public reputation of judicial proceedings.” Olano, 507 U.S. at 732 

(internal quotation marks and brackets omitted).

Berry correctly asserts that a criminal defendant has a right to withdraw a guilty 

plea if he can establish a “fair and just reason for requesting the withdrawal.” Fed. R. 

Crim. P. 11(d)(2)(B). A defendant seeking to withdraw his guilty plea bears the burden 

of demonstrating that withdrawal should be granted, however. See United States v. 

Moore, 931 F.2d 245, 248 (4th Cir. 1991). In deciding whether to permit withdrawal, the 

parties concede that this court should consider whether: (1) Berry has offered credible 

evidence that his plea was unknowing or involuntary; (2) Berry has credibly asserted his 

legal innocence; (3) there has been a delay between entry of Berry’s guilty plea and his 

request to withdraw; (4) Berry has had the close assistance of competent counsel; (5) 

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

inconvenience the court and waste judicial resources. See id. Berry concedes that the 

fifth and sixth Moore factors weigh in the Government’s favor, but argues that the 

remaining factors weigh in favor of allowing him to withdraw his guilty plea. 

After reviewing the record and considering the parties’ arguments, we conclude 

that Berry has not established a “fair and just reason” for requesting to withdraw his 

guilty plea. Rather, we find that every Moore factor weighs against allowing Berry to 

withdraw his guilty plea and, thus, Berry’s summary and unsworn assertion of newly 
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discovered evidence is insufficient to require this court to vacate Berry’s guilty plea. 

Accordingly, we affirm the district court’s amended 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