                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                SEP 13 2004
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                             No. 03-1208
 v.
                                                        (D.C. No. 01-CR-23-Z)
                                                              (Colorado)
 FARIS LEE CARTER, also known as
 Eric Small, also known as “Dirty,”

          Defendant-Appellant.


                                ORDER AND JUDGMENT*


Before TACHA, Chief Judge, McWILLIAMS, Senior Circuit Judge, and McKAY,
Senior Circuit Judge.**



      Based on an encounter with the Denver Police Department occurring on October

28, 2000, Faris Lee Carter (“defendant”) was charged by indictment on January 24, 2001,



      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      **
          Neither party requested oral argument. After examining the briefs and the
appellate record, this three-judge panel has determined unanimously that oral argument
would not be of material assistance in the determination of this appeal. See Fed. R. App.
P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral
argument.
with possession with an intent to distribute more than five grams of cocaine base in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). A second count in the indictment

sought a forfeiture under 21 U.S.C. § 853. The defendant was arraigned on February 26,

2001, at which time he pled not guilty, and an attorney was appointed to represent him.

That attorney filed a motion to suppress. On March 22, 2001, appointed counsel was

permitted to withdraw. The court then appointed another attorney, who represented the

defendant at the hearing on his motion to suppress. After hearing, that motion was denied

on April 30, 2001, and the case was set for trial. An information charging the defendant

with an enhanced penalty due to prior drug convictions was thereafter filed on June 22,

2001, pursuant to 21 U.S.C. § 851. On June 27, 2001, the defendant requested that his

most recently appointed counsel withdraw, which the court allowed, and the court then

appointed a new attorney, referred to as “L. W.,” who thereafter represented defendant.

       On June 11, 2002, on the day the case was set for trial, after defendant had been

granted four or five continuances of his trial date, the defendant, through his most

recently appointed counsel, L. W., entered into a plea agreement with the government

wherein defendant agreed, inter alia, to plead guilty to Count 1 in the indictment. The

defendant further acknowledged his supervised release violation in a prior criminal matter

and agreed to a revocation of his supervised release in that case. The government agreed,

inter alia, to a dismissal of the information charging an enhanced penalty.

       On June 11, 2002, after a hearing, the district court accepted defendant’s plea of


                                            -2-
guilty pursuant to the plea agreement and reset the matter for sentencing. At that hearing,

the court questioned defendant, at length, in order to determine whether the defendant’s

proposed change of plea was “knowing and voluntary.” On June 27, 2002, the defendant

wrote the court a letter asking to withdraw his plea of guilty and later filed a pro se

motion to withdraw his plea of guilty and to appoint new counsel. On August 1, 2002,

the district court denied defendant’s motions to withdraw his plea of guilty. On

September 16, 2002, the district court permitted L.W. to withdraw from the case, and new

counsel (“A.J”) was appointed. On October 3, 2002, defendant filed another motion to

withdraw his guilty plea, which was denied on October 7, 2002. On December 9, 2002,

defendant requested, by letter, the appointment of new counsel, which request was denied

on December 12, 2002. On April 15, 2003, defendant, through A. J., filed a rather prolix

motion to withdraw his guilty plea, supported by defendant’s affidavit, which motion was

denied by the court on April 24, 2003. In that motion to withdraw his plea of guilty, A.J.

suggested, inter alia, that, at the hearing on defendant’s motion to change his plea to one

of guilty, L.W. had not provided the defendant with “assistance of counsel” as required

by the Sixth Amendment.1 On May 2, 2003, the defendant was sentenced to 120 months

imprisonment to run concurrently with a 12 month sentence on his prior conviction on a



       1
        Counsel and the defendant suggest in that motion that L.W., who represented the
defendant at the hearing when he was allowed by the court to change his plea from not
guilty to guilty, was having “personal problems” and that she did not give “full attention”
to his case.

                                             -3-
drug offense.2 Defendant appeals and is represented on appeal by still another attorney.

       Federal Rules of Criminal Procedure 11(d) reads as follows:

              (d) Withdrawing a Guilty or Nolo Contendere Plea. A
              defendant may withdraw a plea of guilty or nolo contendere:
                     (1) before the court accepts the plea, for any reason or
                     no reason; or
                     (2) after the court accepts the plea, but before it
                     imposes sentence if:
                             (A) the court rejects a plea
                             agreement under Rule 11(c)(5); or
                             (B) the defendant can show a fair
                             and just reason for requesting the
                             withdrawal.

       In the instant case, defendant does not ask that we reverse any of the district

court’s orders denying his several motions to withdraw his plea of guilty. He only asks

that we remand the case to the district court and direct it to hold a hearing on his motions

to withdraw his plea of guilty. In the district court, there was never a request for a

hearing on defendant’s motions to withdraw his plea of guilty.3 So, as the parties agree,

we must review the present record and determine whether the district court committed

“plain error” by not, sua sponte, conducting an evidentiary hearing into the question as to

whether the defendant’s plea of guilty was knowingly and voluntarily made. We

       2
        At sentencing, defendant was allowed to speak at length as to why he should be
allowed to withdraw his guilty plea and the district court again denied his request.
       3
         In his brief, counsel concedes that when asked by the court at his change of plea
hearing, the Defendant indicated that he was quite satisfied with the services of his
counsel, L.W. Counsel also concedes that the defendant received a “substantial benefit
by entry of his plea” and also that the record as it currently exists is insufficient to
establish ineffective assistance of counsel.

                                             -4-
conclude that under the described circumstances, the district court did not err in failing to

hold, sua sponte, such a hearing.

       In United States v. Gonzalez, 970 F.2d 1095, 1100 (2nd Cir. 1992) that court spoke

as follows:

                     A defendant is not entitled to an evidentiary hearing as
              a matter of right whenever he seeks to withdraw his guilty
              plea. Although the standard to be applied in granting a
              hearing is less rigorous than the standard for granting the
              motion to withdraw the plea, United States v. Fountain, 777
              F.2d 351, 358 & n. 3 (7th Cir. 1985), cert. denied, 475 U.S.
              1029, 106 S.Ct. 1232, 89 L.Ed.2d 341 (1986), the defendant
              must present some significant questions concerning the
              voluntariness or general validity of the plea to justify an
              evidentiary hearing. Id. at 358 n. 3. No hearing need be
              granted when the allegations on a motion to withdraw a guilty
              plea before sentencing merely contradict the record, are
              inherently incredible, or are simply conclusory. United States
              v. Crooker, 729 F.2d 889, 890 (1st. Cir. 1984); see also
              Fountain, 777 F.2d at 358; United States v. Barnes, 504
              F.Supp. 330, 332 (W.D.Okla. 1980).

       In the same vein, see also Baker v. United States, 404 F.2d 787, 790 (10th Cir.

1968) (a hearing is not required if the record shows that the defendant was informed of

the consequences of his plea); Putnam v. United States, 337 F.2d 313, 315 (10th Cir.

1964) (a hearing is not required where the motion and the files and records conclusively

show that the prisoner is entitled to no relief).

       Both parties cite United States v. Gordon, 4 F.3d 1567 (10th Cir. 1993). In

Gordon, we recognized the general rule that “we will not resolve an ineffective

assistance of counsel claim on direct appeal when the claim has not been raised before the

                                              -5-
district court.”4 In Gordon, as in the instant case, ineffective assistance of counsel was

mentioned in the district court. In Gordon, notwithstanding our recognition of the general

rule, we elected to dispose of the ineffective assistance of counsel issue on direct appeal.

In the instant case, however, there is no request that we resolve the ineffective assistance

of counsel issue and we decline to do so, sua sponte, so to speak. Indeed, in this regard, as

previously stated, counsel concedes that the present record does not show “ineffective

assistance of counsel.” Hence, we resolve this appeal on the only issue presented to us,

i.e., whether the district court committed “plain error” in not holding an evidentiary

hearing on defendant’s motions to withdraw his plea of guilty, when no hearing had been

requested.5   Our examination of the present record leads us to conclude that the district

court, on that record, was not “compelled,” sua sponte, to hold a hearing on Defendant’s

several motions to withdraw his plea of guilty. Had Carter asked for a hearing on his

motion to withdraw his plea, a district court’s decision not to hold an evidentiary hearing

would be reviewed for an abuse of discretion. United States v. Powell, 354 F.3d 362, 270

(5th Cir. 2003). In short, we find no abuse of discretion here.




       4
        In United States v. Galloway, 56 F.3d 1239, 1242 (10th Cir. 1995), we stated that
“The rule in this circuit, then, is that claims of constitutionally ineffective counsel should
be brought on collateral review, in the first petition filed under 28 U.S.C. § 2255.”

       Arguably, the defendant was afforded a “hearing,” though not an “evidentiary
       5

hearing,” when at his sentencing hearing, but before actual sentencing, he spoke at length
in support of his latest motion to withdraw his plea of guilty (he had filed four or five
prior motions to withdraw his guilty plea).

                                             -6-
Judgment affirmed.



                           Entered for the Court



                           Robert H. McWilliams
                           Senior Circuit Judge




                     -7-
