United States v. Barham

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4308
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NELSON EDDY BARHAM, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (3:09-cr-00309-CMC-2)
Submitted: December 16, 2010 Decided: January 21, 2011
Before KING, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Russell W. Mace, III, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant. William N. Nettles, United States
Attorney, James C. Leventis, Jr., Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nelson Eddy Barham, Jr., was convicted, following his
guilty plea, of conspiracy to launder the proceeds of an
unlawful activity (cocaine distribution), in violation of 18
U.S.C. § 1956(h) (2006) (“Count One”), and knowingly and
intentionally permitting the storage, distribution, and use of
cocaine in his place of business, in violation of 21 U.S.C.
§ 856(a)(2) (2006) (“Count Eight”). On appeal, Barham asserts
that there was an insufficient factual basis to support his
guilty plea to Count One and that the district court abused its
discretion in denying his motion to withdraw his guilty plea.
For the following reasons, we reject these arguments and affirm.
Barham’s indictment stemmed from his involvement in a
money laundering transaction. Acting on behalf of Robert
Garrick, Barham’s business partner and an admitted drug dealer,
Barham negotiated for Garrick to purchase a strip club. Garrick
used drug proceeds to pay one of the club owners $190,000.00 in
cash. This aspect of the sale went unreported. Barham contends
there was an insufficient factual basis as to Count One because,
during the Federal Rule of Criminal Procedure 11 colloquy, he
denied knowing that the purchase money came from cocaine
distribution or that the intent of the transaction was to avoid
various reporting requirements.
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Rule 11(b)(3) provides that “[b]efore entering
judgment on a guilty plea, the court must determine that there
is a factual basis for the plea.” As we have explained, “[t]he
rule is intended to ensure that the court make clear exactly
what a defendant admits to, and whether those admissions are
factually sufficient to constitute the alleged crime.” United
States v. Mastrapa, 509 F.3d 652, 659-60 (4th Cir. 2007)
(internal quotation marks omitted). In making a Rule 11(b)(3)
determination, the district court has broad discretion and need
not conduct a trial; moreover, the court is not constrained to
rely only on the plea colloquy, but may conclude that a factual
basis exists from anything that appears on the record. United
States v. Ketchum, 550 F.3d 363, 366-67 (4th Cir. 2008); see
also United States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991)
(noting that Rule 11 does not require the district court to
establish through its colloquy that a factual basis exists for
the plea). The district court “need only be subjectively
satisfied that there is a sufficient factual basis for a
conclusion that the defendant committed all of the elements of
the offense.” United States v. Mitchell, 104 F.3d 649, 652 (4th
Cir. 1997).
We have carefully reviewed the record and conclude
there was ample support for the district court’s factual basis
determination. First and foremost, in his plea agreement,
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Barham stipulated to knowing or believing that the purchase
money was “the proceeds of an offense involving the distribution
of a controlled substance.” At no point in the proceedings did
Barham challenge this stipulation. Moreover, Barham’s
presentence report (“PSR”) detailed his knowledge of the source
of the laundered funds, and Barham did not pursue his objection
to that portion of the PSR. Further, Barham’s testimony at the
Rule 11 hearing squarely belies his contention that there was
insufficient support for the court’s finding that he knew the
purpose of the transaction was to conceal the funds and to avoid
reporting requirements. Accordingly, we hold the district court
properly determined there was a factual basis for the guilty
plea as to Count One. See DeFusco, 949 F.2d at 120.
Barham also maintains the district court erred by
denying his motion to withdraw his plea. We review a denial of
a motion to withdraw a guilty plea for an abuse of discretion.
United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).
In determining whether the trial court abused its discretion in
denying such a motion, this court considers the six factors
articulated in United States v. Moore, 931 F.2d 245, 248 (4th
Cir. 1991). These factors include whether: (1) the defendant
has offered credible evidence that his plea was not knowing or
not voluntary; (2) the defendant has credibly asserted his legal
innocence; (3) there has been a delay between the entering of
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the plea and the filing of the motion; (4) the defendant has had
close assistance of competent counsel; (5) the withdrawal will
cause prejudice to the government; and (6) the withdrawal will
inconvenience the court and waste judicial resources. Id.We have reviewed the district court’s analysis of and
findings on this issue, and conclude the court did not abuse its
discretion in denying Barham’s motion. Barham offered no
evidence that his plea was not knowing or voluntary, and he did
not credibly assert his legal innocence. Accordingly, we reject
Barham’s challenge to the disposition of this motion.
For these reasons, we affirm the district court’s
denial of Barham’s motion to withdraw his guilty plea and the
criminal judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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