                          United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                                    ___________

                                    No. 96-3795
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Arkansas.
Donny Lamer Canady,                      *
                                         *      [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                            Submitted: June 3, 1997

                                Filed: June 24, 1997
                                    ___________

Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.
                            ___________

PER CURIAM.

       Donny Lamer Canady pleaded guilty to possessing more than 50 grams of
cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and the
district court1 sentenced him to 121 months imprisonment and five years supervised
release. Canady appeals his conviction and sentence. We affirm.



      1
        The HONORABLE SUSAN WEBBER WRIGHT, United States District Judge
for the Eastern District of Arkansas.
        Canady first challenges the denial of his motion to withdraw his guilty plea. A
district court may permit withdrawal of a guilty plea before sentence is imposed "if the
defendant shows any fair and just reason." Fed. R. Crim. P. 32(e). Upon reviewing
the record (including the plea-hearing transcript), and upon considering Canady's
unsupported assertion of innocence, the timing of his motion, and the district court's
conclusion that the government would be prejudiced by having to reindict Canady on
a dismissed weapons count, we are persuaded that the district court did not abuse its
discretion in denying the motion. See United States v. Yell, 18 F.3d 581, 582 (8th Cir.
1994) (standard of review); United States v. Abdullah, 947 F.2d 306, 311 (8th Cir.
1991) (listing factors relevant to decision whether to allow defendant to withdraw guilty
plea), cert. denied, 504 U.S. 921 (1992).

      Next, Canady argues that the disparity between the Guidelines penalties for
crack- and powder-cocaine offenses violates his right to due process and equal
protection. These arguments are foreclosed by our prior cases. See United States v.
Smith, 82 F.3d 241, 244 (8th Cir.), cert. denied, 117 S. Ct. 154 (1996).

        Canady also maintains the government failed to prove the substance involved in
his offense was "crack" cocaine as defined in the notes following the drug quantity
table in U.S. Sentencing Guidelines Manual § 2D1.1 (1995). Because Canady did not
raise this challenge at sentencing, we review only for plain error, see Fritz v. United
States, 995 F.2d 136, 137 (8th Cir. 1993), cert. denied, 510 U.S. 1075 (1994), and find
none. Among other things, the presentence report's uncontested account of Canady's
offense conduct characterized the substance that he distributed to a confidential
informant and that the informant saw in Canady's residence as "crack cocaine." See
United States v. LaRoche, 83 F.3d 958, 959 (8th Cir. 1996) (per curiam).
       Finally, Canady challenges a criminal history point he received based on an
uncounseled misdemeanor conviction for which he had been fined and sentenced to one
year of probation. At sentencing, however, Canady offered nothing to support that he


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was unconstitutionally denied counsel for the conviction. See United States v. Early,
77 F.3d 242, 245 (8th Cir. 1996) (per curiam) (once government has carried initial
burden of proving fact of conviction, defendant has burden to show prior conviction
was not constitutionally valid). Even assuming he made the showing, the district court
properly included the conviction in Canady's criminal history score. See Nichols v.
United States, 511 U.S. 738, 748-49 (1994); Scott v. Illinois, 440 U.S. 367, 373 (1979)
("actual imprisonment" is line defining constitutional right to counsel).

      Accordingly, we affirm.

      A true copy.


             Attest:


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




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