                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 06-4303
UNITED STATES OF AMERICA,
                                          Plaintiff-Appellee,
                             v.

REGINALD D. CHAVERS,
                                      Defendant-Appellant.
                       ____________
         Appeal from the United States District Court
              for the Eastern District of Wisconsin.
        No. 05-CR-203—Charles N. Clevert, Jr., Judge.
                       ____________
  ARGUED OCTOBER 3, 2007—DECIDED JANUARY 25, 2008
                    ____________


 Before COFFEY, RIPPLE, and KANNE, Circuit Judges.
  COFFEY, Circuit Judge. Reginald Chavers pleaded
guilty to knowingly attempting to bring a loaded semi-
automatic pistol on an airplane. Two months later, he
moved to withdraw his plea, claiming he did not know the
gun was loaded when he gave it to airport officials. The
district court disagreed and denied the motion. We affirm.


                     I. Background
 In May 2004 Chavers was arrested at Milwaukee
County’s General Billy Mitchell International Airport,
where he was checking in for a flight to Atlanta. He
2                                            No. 06-4303

told airline staff that he needed to declare a weapon
without any ammunition. The airline’s customer-service
representative, Carrie Jackson, asked Chavers to sign
an Unloaded Firearm Declaration. Chavers complied and
placed the signed declaration inside his gun case. Jackson
asked Chavers again whether he had any ammunition,
and Chavers responded “no.” Jackson next told Chavers
that he needed to buy a lock for his gun case before he
could check the case. Chavers complained that the Trans-
portation Security Administration (TSA) screeners were
always breaking the locks on his gun case, but he pur-
chased a lock from the airport concessionaire nonethe-
less. Chavers then gave his gun case to the TSA
screeners, who after examining the case discovered that
the gun was loaded with 10 rounds of ammunition and
that the case also contained an extra magazine with
another 10 rounds. When confronted with this informa-
tion, Chavers claimed—falsely—that he was a law en-
forcement officer and was entitled to carry the loaded
weapon on board.
   Thereafter, Chavers was charged in a two-count in-
dictment with knowingly attempting to place a loaded
firearm in checked luggage. 49 U.S.C. § 46505(b)(2). He
was also charged with knowingly and willfully making
a false representation to airport personnel regarding
the firearm. 18 U.S.C. § 1001. He agreed to plead guilty
to the firearm charge in exchange for the government’s
promise to dismiss the false representation charge.
  During the plea colloquy, Chavers testified that he
wanted to plead guilty because he was, in fact, guilty as
charged. He also testified that he agreed with the factual
basis for his plea as described in the plea agreement.
Furthermore, Chavers testified that he had an adequate
opportunity to discuss the charges and any defenses
he might have with his appointed counsel, that counsel
had accommodated all of his requests, and that he was
No. 06-4303                                               3

fully satisfied with counsel’s representation. After in-
forming Chavers that his criminal conviction would affect
his civil rights, including his ability to own a gun and his
ability to obtain a license for certain kinds of employment,
the trial judge accepted the guilty plea. The district
court did not explicitly ask Chavers if he knew the gun
was loaded when he gave it to the TSA screeners.
  Almost two months later, Chavers wrote a letter to the
court asking to withdraw his guilty plea and have new
counsel appointed. In his letter, he asserted that he
was innocent and blamed his decision to plead guilty on
his attorney, who he now claimed was ineffective. He
maintained that his lawyer failed to locate a crucial
witness, neglected to postpone the trial date in consider-
ation of Chavers’s health problems, and told Chavers
that he was not prepared to try the case.
  In response to Chavers’s letter, the district court ap-
pointed new counsel. Chavers’s new counsel filed a formal
motion to withdraw the guilty plea, arguing that Chavers
did not know the gun was loaded when he gave it to the
TSA officials and that no one told Chavers his felony
conviction would bar him from gun ownership or operat-
ing a security business. The district court denied
Chavers’s motion to withdraw the guilty plea and sen-
tenced Chavers to 5 years’ probation. Chavers appeals,
challenging only the district court’s denial of his motion
to withdraw his plea.


                     II. Discussion
  Chavers makes two arguments in support of his con-
tention that the district court erred in denying his
motion to withdraw his guilty plea. Initially, he claims
that he did not know the gun was loaded when he gave
it to airport personnel, thus undermining the factual
4                                              No. 06-4303

basis of his guilty plea. Second, he argues that the dis-
trict court applied the wrong legal standard in evaluating
his motion to withdraw.
  We have frequently observed that “[a] defendant does
not have an absolute right to withdraw a plea before
sentencing, although the court may allow him to do so if
he has a ‘fair and just reason’ for doing so.” United States
v. Carroll, 412 F.3d 787, 792 (7th Cir. 2005) (quoting
Fed. R. Crim. P. 11(d)(2)(B)). Because the defendant’s
statements at the plea colloquy are presumed to be true,
the defendant bears a heavy burden of persuasion in
showing that such a fair and just reason exists. United
States v. Logan, 244 F.3d 553, 558 (7th Cir. 2001). A
defendant faces an uphill battle in seeking to withdraw a
guilty plea after a thorough plea colloquy. United States v.
Bennett, 332 F.3d 1094, 1099 (7th Cir. 2003). We will
uphold a district court’s factual findings about the exis-
tence of a fair or just reason to withdraw the plea unless
they are clearly erroneous, and we review the district
court’s ruling on the motion to withdraw for abuse of
discretion. Carroll, 412 F.3d at 792.
   Chavers argues that he did not know the gun was loaded
when he handed it to airport personnel and that the
district court consequently erred in finding a sufficient
factual basis for his plea. In essence, Chavers claims
that because knowing the gun was loaded is a necessary
element of the crime to which he pleaded guilty, and
because he did not in fact possess the requisite knowl-
edge, he is actually innocent of the crime. We have fre-
quently held that actual innocence is a valid ground for
withdrawing a guilty plea. See, e.g., Carroll, 412 F.3d
at 792. But “bare protestations of innocence” are insuf-
ficient to withdraw a guilty plea, particularly after a
knowing and voluntary plea made in a thorough Rule 11
colloquy. Id. Rather, the defendant must produce some
credible evidence of his innocence. Id.
No. 06-4303                                               5

   The record shows that Chavers testified that he was
in fact guilty, that he had discussed the plea agree-
ment with his attorney, and that the facts contained in
the plea agreement were correct and a sufficient factual
basis for his guilty plea. Chavers has provided no addi-
tional evidence beyond his own assertions of innocence,
which contradict his sworn testimony at the plea colloquy.
See Carroll, 412 F.3d at 792 (holding that defendant’s
denials of guilt, which contradicted his testimony during
the plea colloquy, were insufficient evidence of actual
innocence). While the district court could have expressly
asked Chavers whether he knew the weapon was loaded
at the plea colloquy, its failure to do so is harmless,
since the government’s evidence together with his con-
cessions at the plea colloquy are sufficient to support a
finding that Chavers possessed the necessary knowledge.
See, e.g., United States v. Schier, 438 F.3d 1104, 1111-12
(11th Cir. 2006) (rejecting defendant’s argument that
trial evidence was insufficient where court could infer
knowledge from the record); see also United States v.
Moore, 586 F.2d 1029, 1032 (4th Cir. 1978) (interpreting
a prior, materially unchanged version of § 46505(b)(2)
and holding that the “knowing” element of offense re-
quired only that the defendant knew the gun was in his
briefcase, not that he intended to use it for an illegal
purpose); United States v. Lee, 539 F.2d 606, 608 (6th Cir.
1976) (also interpreting a prior version of statute and
observing that the “knowing” element required only that
the defendant knew of the presence of a concealed weapon,
not that the defendant knew possessing the weapon was
illegal). Moreover, Chavers had the burden of showing
he did not know the weapon was loaded, and he pro-
vided the district court with no alternative explanation
of the facts that might support his claim of ignorance.
On this record, the district court did not abuse its discre-
tion in concluding that Chavers failed to proffer enough
6                                             No. 06-4303

evidence to show a fair and just reason why he should
be permitted to withdraw his guilty plea.
  Chavers next argues that the district court, in deciding
whether to grant his motion to withdraw the guilty plea,
applied an amorphous “interest of justice” standard
rather than the appropriate “fair and just reason” stan-
dard. Chavers rests this argument on the final sentence
in the order denying his motion, in which the district
court observes that “the interest of justice” would not
be served by allowing Chavers to withdraw his plea.
Chavers also notes that the phrase “fair and just reason”
does not appear in the district court’s decision. He con-
cludes that the district court reviewed his motion under
an impermissibly stringent “interest of justice” standard,
and contends that if the court had applied the “fair
and just reason” standard, it would have been compelled to
grant his motion.
  We have frequently held in the sentencing context that
a district court need not recite “magic words” to assure
a reviewing court that it applied the appropriate legal
standard. See, e.g., United States v. Tyra, 454 F.3d 686,
687 (7th Cir. 2006) (holding that a district court need
not recite magic words at sentencing to ensure that the
correct standard is being used but must only sufficiently
articulate reasons for its decision consistent with correct
standard). The same is true here: so long as the dis-
trict court substantively complied with the requirements
for evaluating a motion to withdraw a guilty plea, the
court need not recite formulaic language. The district
court’s choice of language does not resolve the question
whether it was correct to deny Chavers’s motion. Rather,
we must look at the specific reasons Chavers advanced
in support of his motion to withdraw and whether the
district court erroneously concluded that he had failed to
meet his burden.
No. 06-4303                                               7

  Although Chavers characterizes the “interest of justice”
language as requiring a greater showing than the “fair
and just reason” standard, he points to no substantive
way in which the court’s decision was in fact stricter. He
concedes as much when he admits that, had the district
court used both the “interest of justice” language and
the “fair and just reason” standard, he would not have
quibbled with the court’s choice of words. The record
demonstrates that the trial judge properly considered
whether Chavers’s asserted reason to withdraw was
fair and just, and concluded it was not. The court observed
that Chavers was competent at the time of his plea,
was ably represented by counsel, understood the charge
against him and that he knowingly waived his rights
in pleading guilty, and did not object to the factual basis
for his plea at the Rule 11 colloquy although he was
given the opportunity to do so. These are the precise
factors that a court applying the “fair and just reason”
standard would articulate. See, e.g., Bennett, 332 F.3d
at 1099-1100; United States v. Underwood, 174 F.3d 850,
854 (7th Cir. 1999).
  Finally, the government responds to a claim of ineffec-
tive assistance of counsel, but although Chavers raised
that issue in his letter to the district court, he has not
raised or developed the issue before this court. See Fed. R.
App. P. 28(a)(9). Should Chavers wish to pursue his
contention that his counsel was ineffective, he would be
better served by bringing that claim through a collateral
proceeding under 28 U.S.C. § 2255. See, e.g., Massaro v.
United States, 538 U.S. 500, 504-05 (2003); United States
v. Turcotte, 405 F.3d 515, 537 (7th Cir. 2005).


                    III. Conclusion
  Because Chavers has not supplied a fair and just reason
for withdrawing his guilty plea, the district court did not
err in denying his motion. Accordingly, we affirm.
8                                        No. 06-4303

A true Copy:
      Teste:

                   ________________________________
                   Clerk of the United States Court of
                     Appeals for the Seventh Circuit




               USCA-02-C-0072—1-25-08
