United States v. Larry Berry, 698 F. App'x 136

In 2008 Larry Levonne Berry pled guilty pursuant to a plea agreement to multiple offenses including bank robbery with a dangerous weapon, a § 924(c) firearm offense, Hobbs Act robbery, and being a felon in possession; he was sentenced to 302 months.
Berry’s appellate waiver was enforced on direct appeal; this court dismissed the appeal of his within-Guidelines sentence and found no meritorious unwaived issues.
Berry’s initial § 2255 motion was denied; the Supreme Court vacated that disposition and remanded in light of Johnson v. United States, leading the district court to grant relief and resentence Berry to 258 months after concluding he no longer qualified as an armed career criminal.
Berry later sought to vacate his guilty plea, alleging newly discovered evidence: his then-girlfriend had an affair with an agent involved in his investigation, which he claims would have allowed impeachment and led him to proceed to trial.
Berry did not raise the plea-withdrawal claim below, so the court reviewed for plain error and assessed the Moore factors governing withdrawal of guilty pleas.
The Fourth Circuit concluded Berry failed to show a fair and just reason to withdraw his plea; every Moore factor weighed against withdrawal and the motion was denied, affirming the amended judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Berry’s guilty plea should be vacated based on newly discovered evidence of a romantic relationship between his girlfriend and a government agent	The affair made the plea unknowing: had Berry known, he would have gone to trial and used the relationship to impeach the girlfriend’s credibility	No plain error; Berry did not raise the claim below and fails to satisfy Moore factors and the plain-error standard	Denied — Berry did not establish a fair and just reason to withdraw his plea; every Moore factor weighed against withdrawal
Whether review is for plain error because Berry forfeited the claim by not raising it in district court	Berry conceded he did not raise the claim below but argued the new evidence warrants relief regardless	The Government argued plain-error review applies and that Berry cannot show prejudice or entitlement to relief	Plain-error standard applied; Berry failed to show reasonable probability he would have gone to trial absent the alleged error

Olano v. United States, 507 U.S. 725 (1993) (sets the three-part plain-error review test)
Dominguez Benitez v. United States, 542 U.S. 74 (2004) (in guilty-plea context, error affects substantial rights if it created a reasonable probability defendant would not have pled)
United States v. Moore, 931 F.2d 245 (4th Cir. 1991) (factors governing withdrawal of guilty pleas)
United States v. Martinez, 277 F.3d 517 (4th Cir. 2002) (forfeited Rule 11 errors reviewed under plain-error standard)
Anders v. California, 386 U.S. 738 (1967) (procedure for counsel to withdraw when appeal is frivolous)
Johnson v. United States, 135 S. Ct. 2551 (2015) (invalidated residual clause of the ACCA, prompting § 2255 relief in this case)