UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                               No. 95-5348
JEROME WASHINGTON, a/k/a
Hambone, a/k/a Ronald Jerome
Washington,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 95-5475

ALBERT JONES,
Defendant-Appellant.

Appeals from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-94-291)

Submitted: September 10, 1996

Decided: September 23, 1996

Before HALL, MURNAGHAN, and HAMILTON, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Susan C. Buerkert, Alvin J. Neal, ALVIN J. NEAL & ASSOCIATES,
Irmo, South Carolina; Frank A. Barton, James M. Mullis, Jr., MUL-
LIS & BARTON, Columbia, South Carolina, for Appellants. Marga-
ret B. Seymour, United States Attorney, E. Jean Howard, Assistant
United States Attorney, Greenville, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellants Jerome Washington and Albert Jones were each
charged in a twenty-count indictment. Washington pled guilty to dis-
tribution and possession with intent to distribute heroin and aiding
and abetting in violation of 21 U.S.C. § 841(a)(6) (1988) and 18
U.S.C. § 2 (1988). Jones pled guilty to violating 18 U.S.C.A. § 4
(West Supp. 1996). We affirm their convictions and sentences.

Washington filed a pro se motion to withdraw his guilty plea and
for withdrawal of counsel. The district court heard arguments on the
motion. Washington argued that he was under the influence of metha-
done at the time he entered his guilty plea and was not able to think
clearly. He also alleged that he did not receive effective assistance of
counsel because he was not adequately informed of the consequences
of his plea, specifically that relevant conduct was likely to increase
his sentence. Additionally, he alleged that counsel did not explain
how the amount of drugs attributed to him would be calculated and
did not provide him with copies of motions and transcripts. The dis-
trict court heard testimony from Washington and arguments of coun-
sel and denied the motion.

At the sentencing hearing, Washington raised several objections to
the presentence report. One of the objections, which he now presents

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on appeal, is that he should be eligible for a two-level reduction for
his role as a minor participant under USSG § 3B1.2. The district court
denied the motion for a downward adjustment and sentenced him to
imprisonment for 236 months and five years of supervised release.

Prior to Jones's sentencing, he moved for a downward departure
based upon his age and infirmity. The court heard arguments on the
motion at sentencing. At the conclusion of the hearing, the district
court denied the motion.

On appeal, Jones argues that the district court erred in failing to
grant a downward departure. Washington alleges on appeal that the
district court erred by refusing to grant his motion to withdraw his
guilty plea and failing to find him to be a minor participant under
USSG § 3B1.2.

I

Albert Jones avers that the sentencing court erred in refusing to
grant a downward departure for his age and infirmity. Defense coun-
sel argued for a departure on this basis at sentencing, and the court
denied it, finding that Jones did not demonstrate a proper justification
or extraordinary medical condition. The sentencing court found a sen-
tence within the range prescribed by the sentencing guidelines appro-
priate and sentenced Jones accordingly.

A sentencing court's refusal to grant a downward departure should
not be reviewed on appeal unless the district court believed it had no
discretionary authority to so depart. United States v. Underwood, 970
F.2d 1336, 1338 (4th Cir. 1992). The record reflects that the district
court considered the arguments of counsel on the issue and did not
misapprehend its authority under the guidelines. The judge clearly
knew that he had the authority to depart. Therefore, Jones's sentence
within the guidelines range is not reviewable.

II

Washington argues that the district court erred in denying his
motion to withdraw his guilty plea. We review a district court's

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refusal to allow a defendant to withdraw a guilty plea for abuse of dis-
cretion. United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995).
A defendant does not have an absolute right to withdraw a guilty plea.
United States v. Ewing, 957 F.2d 115, 119 (4th Cir.), cert. denied, 505
U.S. 1210 (1992). Rather, the defendant must present a "fair and just
reason" for the withdrawal. Fed. R. Crim. P. 32(e). The defendant car-
ries the burden of establishing a fair and just reason for withdrawal,
even if the government has not shown prejudice. United States v.
Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc), cert. denied,
___ U.S. ___, 63 U.S.L.W. 3460 (U.S. Dec. 12, 1994) (No. 94-6055).
A "fair and just reason" is one that "essentially challenges . . . the fair-
ness of the Rule 11 proceeding." Id. at 1393. However, an appropri-
ately conducted Rule 11 proceeding raises a strong presumption that
the guilty plea is final and binding. Id.

The court must balance several factors in determining whether to
withdraw a guilty plea:

          (1) Whether the defendant has offered credible evidence
          that his plea was not knowing and voluntary;

          (2) Whether the defendant has credibly asserted his inno-
          cence;

          (3) Whether there has been a delay between the entering
          of the plea and the filing of the motion;

          (4) Whether the defendant has had close assistance of
          competent counsel;

          (5) Whether withdrawal will cause prejudice to the gov-
          ernment;

          (6) Whether withdrawal will inconvenience the court and
          waste judicial resources.

United States v. Moore, 931 F.2d 245, 248 (4th Cir.), cert. denied,
502 U.S. 857 (1991).

                     4
Consideration of these factors weighs against Washington. Wash-
ington's main arguments are that he was not aware of what he was
doing when he pled guilty because he was under the influence of
methadone and tired from working all night the night before the hear-
ing, and that he did not receive effective assistance of counsel. Wash-
ington's statements under oath in the Rule 11 proceeding, however,
"constitute a formidable barrier" to finding an abuse of discretion by
the district court in denying Washington's motion to withdraw his
plea. United States v. DeFusco, 949 F.2d 114, 119 (4th Cir. 1991),
cert. denied, 503 U.S. 997 (1992).

At the Rule 11 proceeding, Washington stated to the court that he
was presently taking methadone. The court inquired further and
Washington responded that the medication did not affect his thinking.
He responded affirmatively when the court asked him if he was clear-
headed and knew what he was doing. Washington also received the
opportunity to voice his concerns at the evidentiary hearing conducted
on his motion to withdraw his plea. It is not apparent from the record
that the district court abused its discretion in denying Washington's
motion on this basis because Washington could not demonstrate an
impairment that would overcome the statements he made under oath.

Washington also argues that his plea was not knowing and volun-
tary because he did not receive effective assistance of counsel. Specif-
ically, he alleges that his attorney did not explain to him how the
amount of drugs attributed to him would be calculated, that his plea
was unsatisfactory because he received little or no benefit from plead-
ing guilty, that his attorney did not explain to him what relevant con-
duct meant, and its effect on his sentence, and his attorney did not
inform him of the actual maximum sentence until the Rule 11 hearing.

For ineffective assistance of counsel to constitute a fair and just
reason to withdraw a guilty plea, it must be of a constitutional magni-
tude. Lambey, 974 F.2d at 1394. To constitute a fair and just reason,
counsel's performance must fall "`below an objective standard of rea-
sonableness,'" and prejudice must be shown by demonstrating that
absent the substandard performance, "`there is a reasonable probabil-
ity that [the Defendant] would not have pleaded guilty and would
have insisted on going to trial.'" United States v. Craig, 985 F.2d 175,

                    5
179 (4th Cir. 1993) (quoting United States v. DeFreitas, 865 F.2d 80,
82 (4th Cir. 1989)).

Washington's statements at the Rule 11 proceeding belie his alle-
gations of ineffective assistance of counsel. Washington responded
affirmatively when asked if he was satisfied with his lawyer's repre-
sentation and whether his lawyer did everything that he asked him to
do. He also responded that his attorney did not fail to do anything that
he asked him to do. Further, he stated that he understood the conse-
quences of pleading guilty. Finally, he agreed that his plea agreement
did not contain a stipulation as to amount of drugs attributable to him.

The district court warned Washington of the consequences of his
guilty plea. The court stated that Washington's maximum term of
imprisonment would be for life, which included the consideration of
relevant conduct. The district court also explained that in pleading
guilty to the aiding and abetting count, he would be charged with
what others did in relation to that count.

Washington ultimately entered his plea based upon information
that the district court gave him: that his maximum term of imprison-
ment was life, what the consequences of pleading guilty would be,
and that there was no stipulation as to the amount of drugs attributed
to him. The record does not demonstrate, and Washington does not
allege, that there is a reasonable probability that he would not have
pleaded guilty and would have insisted on going to trial without coun-
sel's alleged errors. Without such a showing, a fair and just reason
cannot be found. See Craig, 985 F.2d at 180.

Finally, the other factors under Moore may be considered. Wash-
ington never asserted his innocence, credibly or otherwise, and he
delayed two months between entering his plea and moving the district
court to withdraw his plea. The remaining two factors should be con-
sidered to be neutral because there is no evidence as to the degree of
prejudice to the Government or inconvenience to the court. We find
that there is not enough evidence appearing in the record to establish
that the plea was not knowing and voluntary or that Washington pres-
ented a fair and just reason for withdrawal of his plea.

                    6
III

Finally, Washington argues that the district court should have
granted him a two-level downward adjustment for being a minor par-
ticipant in the offense. This court reviews a district court's decision
not to adjust downward for a minor or minimal role in the offense
under the clearly erroneous standard. United States v. Palinkas, 938
F.2d 456, 460 (4th Cir. 1991), vacated, 503 U.S. 931 (1992),
reinstated, 977 F.2d 905 (4th Cir. 1992). Under USSG § 3B1.2, a
court can grant a two-point downward adjustment if the defendant
played a minor role in the offense. United States v. Brooks, 957 F.2d
1138, 1149 (4th Cir.), cert. denied, 505 U.S. 1228 (1992).

The district court did not clearly err in refusing to grant the adjust-
ment. Washington's involvement did not comprise a single event, but
an extended connection. At the Rule 11 proceeding Washington
admitted that he sold drugs for the organization in two different areas.
The Government also stated to the court that it had historical informa-
tion regarding nine drug buys. Washington agreed with what the Gov-
ernment said it could produce. By his own admission at the
sentencing hearing, Washington sold drugs on a daily basis for four
months, and the organization that he participated in was trafficking
eight bundles of heroin a day at least six days a week for a period of
four months.

A drug seller in a drug conspiracy generally cannot be considered
a minor participant. Id. In addition, Washington did not produce any
evidence that he was less culpable than other participants. See United
States v. Daughtrey, 874 F.2d 213, 216 (4th Cir. 1989). We therefore
find that the district court did not err in denying a downward adjust-
ment and refusing to classify Washington's role in the offense as that
of a minor participant.

For these reasons, we affirm Appellants' convictions and sen-
tences. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.

AFFIRMED

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