                                     No. 95-3522



United States of America,            *
                                             *
              Plaintiff - Appellee,      *
                                             *   Appeal from the United States
         v.                                  *   District Court for the
                                             *   Western District of Missouri.
Donnie D. DeHart,                            *           [UNPUBLISHED]
                                             *
              Defendant - Appellant. *




                      Submitted:    December 10, 1996

                          Filed:    February 26, 1997


Before FAGG, FLOYD R. GIBSON, and LOKEN, Circuit Judges.

PER CURIAM.


         Appellant Donnie D. DeHart pleaded guilty to violating 21 U.S.C. §§
841(a)(1),     846   (1994),   by   conspiring    to   manufacture   and   distribute
methamphetamine.      The only issue in this appeal is whether the district
     1
court committed error when it denied DeHart's motion to withdraw his plea
prior to sentencing.      Because refusal of this request was clearly within
the court's discretion, we affirm.


I.   BACKGROUND


         On May 2, 1995, the district court accepted DeHart's plea of guilty
to one count of conspiring to manufacture and distribute methamphetamine,
a violation of 21 U.S.C. §§ 841(a)(1), 846.




         1
      The HONORABLE FERNANDO J. GAITAIN, JR., United States
District Judge for the Western District of Missouri.
Almost four months later, but prior to his sentencing, DeHart filed with
the court a motion to withdraw his plea.        Underlying this request was
DeHart's allegation that the Presentence Investigation Report ("PSI"),
which he had received in late July, contained "new" information revealing
that his former girlfriend, Kim Fletcher, was the confidential informant
the Government had consulted during its investigation.         According to
DeHart, Fletcher was herself intimately involved in the illegal drug
distribution enterprise, and he wished to proceed to trial in order to
raise an entrapment defense based on her conduct.        The district court
denied the motion, and DeHart appeals that decision.


II.   DISCUSSION


      A criminal defendant does not possess an absolute right to retract
a guilty plea prior to sentencing, but must instead demonstrate a "fair and
just reason" for the withdrawal.   See Fed. R. Crim. P. 32(e); United States
v. Capito, 992 F.2d 218, 219 (8th Cir. 1993).      A district court's denial
of a motion to withdraw is subject to review under the abuse of discretion
standard.   See Capito, 992 F.2d at 219.


      In this case, DeHart sought to withdraw his guilty plea in order to
raise an entrapment defense at trial.2     It is evident, however, that this
defense would have been wholly lacking in merit.     A defendant is entitled
to a jury instruction on entrapment only if he produces evidence that "(1)
government agents implanted the




      2
      To justify retraction of a plea based on a desire to
present a defense at trial, the defendant must show that the
defense was "previously unknown or unavailable." Cf. United
States v. Morrison, 967 F.2d 264, 268 (8th Cir. 1992). This is
an interesting standard to apply where, as here, the asserted
defense was patently frivolous, and thus equally unavailable,
both before and after the defendant filed the motion to withdraw.
We merely note that we seriously question whether the PSI, as
claimed, included information that was new to DeHart.

                                     2
criminal design in his mind, and (2) government agents induced him to
commit the offense."    United States v. Huff, 959 F.2d 731, 737 (8th Cir.),
cert. denied, 506 U.S. 855 (1992).        In his motion to withdraw, DeHart
completely failed to assert facts substantiating his ability to meet either
of these two elements.    DeHart acknowledged under oath that he was not an
unwilling participant in the criminal conspiracy, and it appears that he
would have been able to show, at most, the unsurprising fact that the
confidential informant was "just as culpable" as he was.     This falls far
short of the sort of proof necessary to convince reasonable jurors that
entrapment has occurred.


       Because DeHart could not, under the circumstances alleged, have
prevailed on the proffered defense, he did not even begin to present the
district court with a fair and just reason for withdrawing his plea.     As
such, the court did not abuse its discretion by denying DeHart's motion.


III.   CONCLUSION


       For the foregoing reasons, we affirm the district court's denial of
DeHart's motion to withdraw his guilty plea.


       AFFIRMED.


       A true copy.


            Attest:


                    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                      3
