                            UNPUBLISHED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Affirmed and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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




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