                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 16-4303


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SHAWN SCHENCK, a/k/a AR, a/k/a Shawn Humbert,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
Senior District Judge. (7:15-cr-00002-H-1)


Submitted:   February 9, 2017             Decided:   February 17, 2017


Before MOTZ and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed in part; affirmed in part by unpublished per curiam
opinion.


Hannah Rogers Metcalfe, METCALFE & ATKINSON, LLC, Greenville,
South Carolina, for Appellant.   Jennifer P. May-Parker, Phillip
Anthony Rubin, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Shawn    Schenck    pled   guilty,     pursuant     to   a   written       plea

agreement, to a criminal information charging that he engaged in

a   continuing   criminal     enterprise,     in   violation       of    21    U.S.C.

§ 848(a) (2012).       Prior to sentencing, Schenck moved to withdraw

his guilty plea, asserting that his plea was neither voluntary

nor supported by a sufficient factual basis.               The district court

denied Schenck’s motion and sentenced Schenck to a term of 276

months in prison.        Schenck timely appeals.

      On appeal, Schenck challenges whether a sufficient factual

basis supported his guilty plea, and contends that the district

court erred in denying his motion to withdraw his plea and in

imposing   a   276-month     sentence.       The   Government      has    moved    to

dismiss the appeal on the basis of Schenck’s waiver of the right

to appeal his conviction and sentence.

      “We review the validity of an appeal waiver de novo, and

will enforce the waiver if it is valid and the issue[s] appealed

[are]   within   the     scope   of   the    waiver.”      United        States    v.

Copeland, 707 F.3d 522, 528 (4th Cir. 2013) (internal quotation

marks   omitted).         Schenck     challenges    the    waiver’s       validity

insofar as he contests the validity of the plea itself.                       Because

Schenck preserved this issue by moving in the district court to

withdraw his guilty plea, we evaluate the Fed. R. Crim. P. 11



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proceedings for harmless error.                     United States v. Bradley, 455

F.3d 453, 461 (4th Cir. 2006); see Fed. R. Crim. P. 11(h).

     Our review of the record reveals that the district court

properly     ensured         that     Schenck’s           guilty        plea     was     knowing,

voluntary,          and     supported      by       a     sufficient           factual     basis.

Accordingly, we conclude that the plea was valid.                                   See United

States     v.       DeFusco,     949      F.2d      114,     116        (4th      Cir.     1991).

Similarly, we conclude that Schenck knowingly and voluntarily

waived the right to appeal his sentence, see United States v.

Manigan, 592 F.3d 621, 627 (4th Cir. 2010), except for claims of

ineffective assistance or prosecutorial misconduct not known to

Schenck at the time of his guilty plea.                            We therefore grant in

part the Government’s motion to dismiss and dismiss Schenck’s

challenge to the reasonableness of his sentence.

     However,             Schenck’s      valid          appellate        waiver        does    not

foreclose       a   challenge       to    the   district         court’s        denial    of   his

motion to withdraw his guilty plea on the basis of the plea’s

validity.       See United States v. Johnson, 410 F.3d 137, 151 (4th

Cir. 2005).          We review the district court’s denial for abuse of

discretion.         United States v. Nicholson, 676 F.3d 376, 383 (4th

Cir. 2012).          To withdraw a guilty plea prior to sentencing, a

defendant must “show a fair and just reason for requesting the

withdrawal.”         Fed. R. Crim. P. 11(d)(2)(B).                      Where, as here, the

district    court          complied      with    the      Rule     11    requirements,         the

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defendant must overcome a strong presumption that his guilty

plea is final and binding.             Nicholson, 676 F.3d at 384.               In

deciding a plea-withdrawal motion, the district court considers

the nonexclusive factors set forth in United States v. Moore,

931 F.2d 245 (4th Cir. 1991).          Nicholson, 676 F.3d at 384.

     We    have    reviewed     the   record    in   this    case       and,   after

carefully    considering        the   Moore    factors      and    the    parties’

arguments, conclude that the district court did not abuse its

discretion in denying Schenck’s motion to withdraw his guilty

plea.     Accordingly, we dismiss the appeal in part and affirm in

part.      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.

                                                            DISMISSED IN PART;
                                                              AFFIRMED IN PART




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