                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-1553
                                    ___________

United States of America,              *
                                       *
            Plaintiff – Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the Western
                                       * District of Missouri.
Dustin Taylor,                         *
                                       *
            Defendant – Appellant.     *
                                  ___________

                              Submitted: November 13, 2007
                                  Filed: February 8, 2008
                                  ___________

Before MELLOY, BEAM, and SHEPHERD, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

       Pursuant to a plea agreement, Dustin Taylor pled guilty to an information
charging him with being a felon in possession of ammunition in violation of 18 U.S.C.
§ 922(g)(1). Under the plea agreement, Taylor waived his rights to appeal his guilt
and sentence. Subsequently, he moved to withdraw his guilty plea before and during
the sentencing hearing. The district court denied Taylor’s motions, finding that Taylor
did not have a fair and just reason to withdraw his plea. See Fed. R. Crim. P.
11(d)(2)(B). Taylor appeals the district court’s denial of his motions to withdraw his
guilty plea. Taylor now claims that he was under the influence of marijuana and
lithium, a depression medication, at his change of plea hearing and suffered from
bipolar disorder, and thus he did not knowingly and voluntarily enter a guilty plea.
Taylor also alleges that the district court failed to conform the hearing to the
requirements of Rule 11. See Fed. R. Crim. P. 11(b). We affirm.

                                    I. Background

                             A. Change of Plea Hearing

       At the change of plea hearing on August 30, 2006, Taylor pled guilty to the
charge of being a felon in possession of ammunition. The district court questioned
Taylor, his counsel, and a pretrial services officer regarding Taylor’s drug use,
medical history, mental state, and understanding of the proceedings. The court asked
Taylor whether he was “now under the influence of any alcohol, drugs, or
medication.” Taylor responded that he was only under the influence of lithium, a
depression medicine he had been taking for the past couple months. The court asked
Taylor whether he considered himself competent to enter a guilty plea, and Taylor
responded affirmatively, “Yes, sir, I do.” The district court asked if Taylor was or had
been diagnosed with any mental disease, excluding his recent depression diagnosis.
Taylor answered affirmatively, but stated that his memory was not good and turned
to the officer. The officer stated he was only aware of Taylor’s recent depression and
anxiety issues.

       Taylor insisted that he had been diagnosed with another mental disease when
he was in his early twenties (he was twenty-nine at the time of the plea), had received
medication, but did not take the medication because he “was young and dumb.” The
officer suggested that Taylor was referring to information that Taylor received from
prior counsel who advised him that he might have had post-traumatic stress disorder.
The court asked Taylor about the officer’s suggestion, and Taylor agreed that it was
what he was referring to, but stated, “Yeah, bipolar.” The court asked, “Bipolar?”
Taylor nodded his head. The court asked Taylor’s then-current counsel about
Taylor’s post-traumatic stress disorder. Taylor’s counsel stated that Taylor might

                                          -2-
have previously been diagnosed with bipolar disorder and post-traumatic stress
disorder, but the diagnoses were not recent. Taylor interjected, “Huh-uh. No.”
Taylor’s counsel continued: “when I have met with Dustin, which has been on several
occasions and spoken with him on the phone, I believe all of his responses are
appropriate and I believe he is competent.”

       The court told Taylor that by pleading guilty, Taylor was waiving some of his
rights. Taylor acknowledged this fact. The court explained many of these rights,
including the right to counsel at trial, the right to a presumption of innocence, the right
to a jury trial, and the right to call witnesses. The court then asked Taylor if he
understood the waiver of those rights, and Taylor stated, “Yes, sir, I do.” The court
inquired about the plea agreement, and Taylor said that his counsel read the agreement
to him and answered his questions about it and that they discussed its terms. Taylor
stated that he understood the terms in the agreement and understood that they all
applied to him. The court directed Taylor to specific paragraphs detailing facts of the
offense, statutory penalties, conditions of supervised release, and waiver of appellate
rights. Taylor acknowledged that he understood the terms within each of those
paragraphs.

       The court asked: “Do you understand that once I accept your plea of guilty
today—that’ll be when I do that—that I’m not going to let you later withdraw it just
because you change your mind?” Taylor responded, “Yes, sir.” The court asked
Taylor again if he understood, and Taylor responded affirmatively. Taylor
acknowledged that he could not withdraw his plea of guilty just because he might
dislike the sentence that the court could give to him. Taylor denied that anyone
pressured or coerced him into making the plea or promised him what the court would
do at sentencing. Taylor stated that he had had sufficient time to discuss his decision
to plead with counsel and was satisfied with his counsel’s representation.




                                            -3-
       Ultimately, the court found “that the defendant understands the charge against
him and the consequences of his plea” and that “[t]he defendant has been advised of
his rights, understands them, and voluntarily and intelligently waives those rights.”
The court found that Taylor did not suffer from a mental disease that “would affect
his ability to understand the nature and consequences of his acts.” The court also
found that the lithium did not affect Taylor’s ability to assist counsel in his defense.
The court found that “[t]he defendant’s decision to plead guilty has been made freely
and voluntarily and without coercion.”

      When the court brought up the topic of bond, the court acknowledged that
Taylor tested positive for marijuana that morning and stated “that’s not very smart.”
The court noted that Taylor repeatedly had violated some conditions of his release on
bond following his initial appearance before a magistrate judge. The court stated that
“the one issue you need to get under control is your drug use because that’ll just get
you in trouble some more.” The court did not discuss the marijuana test’s
implications on Taylor’s ability to knowingly and voluntarily enter a guilty plea.

                        B. Motions to Withdraw Guilty Plea

       A probation officer submitted a final presentence investigation report on
November 30, 2006. The probation officer recommended a denial of an adjustment
for acceptance of responsibility for Taylor’s ongoing unlawful conduct while released
on bond during pretrial supervision. Taylor had contact with a government witness
and thrice tested positive for marijuana. Taylor was also charged with third degree
assault. In addition, Taylor declined to discuss the offense of conviction with the
probation officer during a presentence investigation interview and provided a written
statement instead. The probation officer’s recommendation against an adjustment for
acceptance of responsibility contrasted with the government’s position in the plea
agreement that the government would file a written motion for such an adjustment.



                                          -4-
      On December 12, 2006, Taylor’s counsel moved to withdraw as counsel
because Taylor requested her withdrawal and the appointment of new counsel.
Taylor’s counsel cited an irreconcilable conflict and ineffective communication
between Taylor and herself. A magistrate judge granted leave to Taylor’s counsel and
appointed new counsel on December 19, 2006.

       In a pro se filing on January 18, 2007, Taylor gave notice of his intent to
withdraw his “involuntary” plea of guilty at the next scheduled hearing in his case.
He “[sought] to contest the merits of this matter on the grounds that he [was] not
guilty, there [was] no factual basis for the plea, and the plea violate[d] due process,
as counsel coerce[d] or otherwise undermined the procedure.” In a pro se motion
mailed on February 18, 2007, Taylor moved the district court for an order, based on
his unopposed January 18 filing, to withdraw the purportedly involuntary plea entered
under the coercion of his first counsel.

      On February 23, 2007, the district court considered Taylor’s motions pursuant
to Federal Rule of Criminal Procedure 11(d). After reviewing the transcript of
Taylor’s change of plea hearing, the district court first found that it had already
accepted the plea agreement and that Taylor admitted the government’s allegations
under oath. The court next noted that Taylor had stated his understanding that he
could not later withdraw his guilty plea if he changed his mind, had admitted no one
coerced his plea, and acknowledged his satisfaction with the representation of his
counsel. The court found that Taylor failed to show a fair and just reason for
requesting withdrawal.

       On March 1, 2007, Taylor filed pro se objections to the district court’s denial
of his motions. Taylor, for the first time, asserted that he was under the influence of
two drugs during the change of plea hearing, and as a result, he failed to make a
knowing and voluntary plea. He also requested an evidentiary hearing regarding his
innocence.

                                          -5-
       On March 1, 2007, the district court considered Taylor’s March 1 motion.
After reviewing the transcript of the change of plea hearing, the district court found
that Taylor testified under oath that he was competent to enter a plea and voluntarily
entered it. The court denied Taylor’s motion and did not disturb its February 23 order.

       On March 5, Taylor wrote a letter to the district court. Taylor alleged that he
“was made to plea” guilty without understanding that he was admitting guilt to an
offense he did not commit and without understanding that he was waiving substantial
constitutional rights. As the result of being under the influence, he only “vaguely
remember[ed] the mistake [he] made.” He again alleged that his first counsel coerced
his involuntary plea.

                                C. Sentencing Hearing

       On March 5, 2007, the district court began Taylor’s sentencing hearing by
acknowledging receipt of Taylor’s March 5 letter and denying it, to the extent it was
a request for the court to reconsider its February 23 order. The court explained that
it had discussed all plea-related factors with Taylor at the change of plea hearing and
that Taylor had understood and agreed to the change of plea. The court concluded that
Taylor had simply changed his mind.

       Taylor claimed that he lied under oath when he pled guilty to possession of
ammunition. He explained that on “that morning I tested positive for marijuana and
I was in a bad state on depression.” He alleged that he and his first counsel both had
psychiatric evaluations performed and that his counsel read her evaluation instead of
his evaluation. Taylor questioned this action, and his counsel allegedly stated “if the
judge would have heard [Taylor’s], then he’d have locked [Taylor] up indefinitely in
a mental institution.” Taylor also alleged that although he testified under oath that he
was satisfied with his first counsel’s representation, he lied and actually was unhappy
with her representation. He wrote a letter to send to the court about his dissatisfaction,

                                           -6-
but he did not mail it after his counsel read it, begged him not to mail it, and agreed
to withdraw from the case. In the letter, Taylor allegedly discussed being threatened
and promised certain things. He alleged that his counsel told him what to say in
court—plead guilty to being a felon in possession of ammunition, even though he was
charged with being a felon in possession of a firearm.

       The district court asked Taylor whether he understood what it meant to tell the
truth under oath the day of his change of plea hearing. Taylor responded he
understood then and that he “understood a lot of things that day.” The district court
stated that he would abide by the record of the change of plea hearing and stick with
the guilty plea made therein.

      After considering the Guidelines and other § 3553(a) factors, the district court
sentenced Taylor to 100 months’ imprisonment and three years of supervised release.

                                   II. Discussion

                           A. Waiver of Appellate Rights

       We first discuss whether Taylor’s waiver of appellate rights bars him from
seeking relief in this court. “When reviewing a purported waiver, we must confirm
that the appeal falls within the scope of the waiver and that both the waiver and plea
agreement were entered into knowingly and voluntarily.” United States v. Andis, 333
F.3d 886, 889-90 (8th Cir. 2003) (en banc); see United States v. McIntosh, 492 F.3d
956, 959 (8th Cir. 2007). In the plea agreement, Taylor waived “his right to appeal
or collaterally attack a finding of guilt following the acceptance of this plea
agreement” and waived “his right to appeal his sentence, directly or collaterally, on
any ground except a sentence imposed in excess of the statutory maximum or an
illegal sentence.” In his appeal, Taylor’s argument goes to the fundamental Andis
issue of whether the plea agreement, which contained the appeal waiver, was entered

                                          -7-
into knowingly and voluntarily. In essence, he is arguing that if he was not competent
to plead, he could not knowingly and voluntarily enter into a plea agreement that
contained an appeal waiver. We agree the appeal waiver does not foreclose our
consideration of the competency issue. If a defendant is not competent to plead
because of mental disease or defect or because he is under the influence of drugs, an
appeal waiver cannot cure that deficiency. We thus have jurisdiction to review the
merits of Taylor’s appeal.

                            B. Compliance with Rule 11(b)

       Taylor alleges that the district court failed to conform the hearing to the
requirements of Rule 11. We hold that the district court properly conducted the
change of plea hearing in accordance with Rule 11(b). Before accepting Taylor’s
plea, the district court discussed the right to a jury trial, the right to confront adverse
witnesses, the waiver of trial rights, the statutory penalties, and the waiver of appellate
rights under the plea agreement. See Fed. R. Crim. P. 11(b)(1). The district court
determined the plea was voluntary after addressing Taylor personally and inquiring
about any promises, pressure, or coercion regarding the plea. See Fed. R. Crim. P.
11(b)(2). The district court also asked questions to determine there was a factual basis
for the plea. See Fed. R. Crim. P. 11(b)(3). Despite this holding, we do note,
however, the district court could have inquired more extensively in other areas. One
of Taylor’s complaints is that the district court should have made a more searching
inquiry into the circumstances of his positive test for marijuana. It may have been
preferable for the district court to ask about recency of use and any effects the
marijuana use had on Taylor. However, given the intensive colloquy the district court
had with Taylor and its ability to personally observe Taylor’s conduct and hear his
answers, we are convinced the district court committed no error in finding Taylor
competent.




                                            -8-
                       C. Denial of Motions to Withdraw Plea

       Taylor seeks reversal of the district court’s denial of his motions to withdraw
his guilty plea. If a defendant presents a “fair and just reason” for the withdrawal, the
defendant may withdraw a guilty plea after the court’s acceptance of the plea, but
before sentencing. Fed. R. Crim. P. 11(d)(2)(B); United States v. Maxwell, 498 F.3d
799, 800 (8th Cir. 2007). We review the district court’s denial of a motion to
withdraw a guilty plea for abuse of discretion. Maxwell, 498 F.3d at 801. We give
deference to the district court judge because he is in a better position to find facts,
make credibility determinations, and become familiar with the individual case and
defendant than this court. Gall v. United States, 128 S. Ct. 586, 597-98 (2007).

       The district court had ample evidence supporting its finding that Taylor
knowingly and voluntarily entered a guilty plea. The district court inquired into
Taylor’s mental state and medications during the change of plea hearing. Taylor
stated at the hearing that he was only under the influence of lithium for treatment of
his depression, and not marijuana, and was competent to enter a plea. He also stated
that he did not suffer from bipolar disorder and post-traumatic stress disorder. The
district court thoroughly and carefully explained the consequences of pleading guilty,
and Taylor repeatedly stated that he understood those explanations. The district court
asked Taylor’s counsel whether she believed Taylor was competent, and she
responded affirmatively.

       We conclude that the district court did not abuse its discretion by denying
Taylor’s motions to withdraw his guilty plea. Taylor failed to show a fair and just
reason for requesting the withdrawal. At no time did Taylor allege to the district court
that he was under the influence of marijuana at the change of plea hearing. He first
made this allegation on appeal. He damaged his credibility by admitting during the
sentencing hearing that he lied under oath on multiple occasions during the change of
plea hearing. Finally, we note that Taylor waited until after preparation of the

                                           -9-
presentence report, which recommended denial of acceptance of responsibility, and
more than four months after entering his guilty plea to challenge the plea. The district
court did not abuse its discretion in questioning Taylor’s motives and discounting his
claim of lack of competency.

                                   III. Conclusion

      We affirm the judgment of the district court.
                      ______________________________




                                         -10-
