UNPUBLISHED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Affirmed and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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