UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4204

JACQUE ALSUP,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CR-96-192-S)

Submitted: November 25, 1997

Decided: January 15, 1998

Before HALL, WILKINS, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

William B. Purpura, Michael D. DeMartin, Baltimore, Maryland, for
Appellant. Lynne A. Battaglia, United States Attorney, Christina
Manuelian, Assistant United States Attorney, Baltimore, Maryland,
for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Jacque Alsup pled guilty to conspiracy to distribute and to possess
with intent to distribute heroin. At his arraignment, due to Alsup's
appearance, demeanor, and admissions, the district court directed that
Alsup be given a breathalyzer and urinalysis before the court would
accept the guilty plea. The tests revealed Alsup had a blood alcohol
content of .08 and that he had marijuana in his system. Accordingly,
the district court revoked Alsup's bail, ordered that he be taken into
custody to "sober up" before entering his plea, and rescheduled the
arraignment for the next morning.

Alsup entered his guilty plea the next morning pursuant to a plea
agreement with the Government, which Alsup had signed the day
before while under the influence of alcohol and marijuana. The plea
agreement contained a stipulation of facts, which the court used as the
basis for acceptance of the plea and drug quantity calculations. The
district judge engaged in a comprehensive Fed. R. Crim. P. 11 collo-
quy and then accepted Alsup's guilty plea.

At sentencing two months later, Alsup requested to withdraw his
plea because he alleged his attorney had incorrectly advised him that
his criminal history category would be a level IV, rather than the level
VI found by the probation officer. The district court denied Alsup's
motion, reduced his criminal history category to level V, and sen-
tenced Alsup to 168 months imprisonment. Alsup timely noted an
appeal.

I

The denial of a motion to withdraw a guilty plea is reviewed for
an abuse of discretion. See United States v. Craig, 985 F.2d 175, 178
(4th Cir. 1993). Withdrawal of a guilty plea is not a matter of right.
See United States v. Hyde, ___ U.S. #6D 6D6D#, 65 U.S.L.W. 4369 (U.S.
May 27, 1997) (No. 96-667); United States v. Ewing, 957 F.2d 115,
119 (4th Cir. 1992). Under Fed. R. Crim. P. 32(d), Alsup needed to
provide the court a "fair and just reason" for withdrawal of his guilty

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plea. The court evaluates the proffered reason in light of: (1) whether
the plea was knowing and voluntary; (2) whether the defendant credi-
bly asserted his legal innocence; (3) the length of delay between the
entry of the plea and the filing of the motion to withdraw; (4) whether
the defendant had close assistance of effective counsel; (5) whether
withdrawal would prejudice the government; and, (6) whether with-
drawal would inconvenience the court or waste judicial resources. See
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).

Alsup argued that he should have been allowed to withdraw his
guilty plea because he did not have effective assistance of counsel in
that his attorney failed to adequately prepare him for entrance of the
guilty plea. Specifically, Alsup alleges his attorney should not have
allowed him to sign the plea agreement while Alsup was under the
influence of alcohol and marijuana. Alsup also contends his attorney
was ineffective for erroneously advising him that his criminal history
score would be level IV, when the probation officer found it to be
level VI.

When the basis for a defendant's request to withdraw his plea is
poor advice from his attorney, he must show that his attorney's per-
formance fell below an objective standard of reasonableness and that
there was a reasonable probability that, but for counsel's errors, he
would have pleaded not guilty and insisted on going to trial. See
United States v. DeFreitas, 865 F.2d 80, 82 (4th Cir. 1989). Counsel's
erroneous advice regarding the sentence range is not a basis for with-
drawal of plea where the defendant was made aware of sentencing
uncertainty by the court. See United States v. Lambey, 974 F.2d 1389,
1395 (4th Cir. 1992) (in banc).

The record indicates that Alsup's impairment was not discovered
until he admitted in court that he had consumed two beers earlier that
morning. The record also reflects that Alsup had accepted the terms
of the Government's plea agreement on December 24, 1996, two
weeks before he actually signed the agreement. In addition, prior to
accepting the Government's offer, Alsup consulted with his trial attor-
ney and a second attorney, who was brought in specifically to advise
Alsup on whether to accept the agreement. Finally, the district judge
conducted a very thorough Rule 11 hearing after Alsup "sobered up,"
reviewing the plea agreement with Alsup line-by-line. Thus, Alsup

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failed to establish that his attorney's performance was objectively
unreasonable. He also failed to establish a reasonable probability that
he would not have pled guilty and accepted the plea agreement if his
attorney had advised him against signing the agreement while Alsup
was impaired.

Alsup's contention that his attorney was ineffective because he
misled Alsup about his sentence by incorrectly estimating the crimi-
nal history score is also without merit. The district judge conducted
a very thorough Rule 11 hearing and advised Alsup several times of
the maximum penalty, that there was no agreement as to his criminal
history, that the court was not bound by any agreement between the
parties as to the sentence, and that no one could"give [Alsup] a bind-
ing prediction or promise as to exactly what sentence" Alsup would
receive. In addition, the court advised Alsup that he would not be able
to withdraw his guilty plea if the sentence were different from what
he expected, and Alsup admitted that no one had made any promises
or assurances on which he based his decision to plead guilty. Accord-
ingly, the district court did not abuse its discretion in concluding that
Alsup's proffered "fair and just reason" for withdrawing his guilty
plea was inadequate.

II

Alsup argues that the district court erred when it accepted his guilty
plea when the factual basis for the plea was stipulated by Alsup when
he was impaired because of the alcohol and marijuana. This claim is
without merit.

Rule 11(f), Fed. R. Crim. P., requires the court to make inquiry and
satisfy itself that a factual basis exists for the plea. The district court
may find a factual basis for the plea "from anything that appears on
the record," and a signed statement of facts is sufficient. See United
States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). A stipulated
factual statement was signed by Alsup and appended to the plea
agreement. Although the agreement was signed while Alsup was
impaired, the same factual statement had been accepted by Alsup two
weeks earlier. Furthermore, during the Rule 11 colloquy, Alsup
admitted that he conspired to distribute heroin in Baltimore and that
he could foresee the amount involved as between three and ten kilo-

                     4
grams. He also admitted he knew his behavior was illegal and wrong.
Therefore, the district court properly found a factual basis for the
plea.

We affirm the district court's orders denying Alsup's motion to
withdraw his guilty plea and entering judgment against him pursuant
to a plea of guilty to conspiracy to distribute and to possess with
intent to distribute heroin, in violation of 21 U.S.C. § 846 (1994). We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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