UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5891

ROY LEE EVANS,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CR-94-138)

Submitted: October 7, 1997

Decided: October 23, 1997

Before MURNAGHAN, LUTTIG, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Gordon Widenhouse, Assistant Federal Public Defender, Raleigh,
North Carolina, for Appellant. Robert P. Crouch, Jr., United States
Attorney, Kenneth M. Sorenson, Assistant United States Attorney,
Roanoke, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Roy Lee Evans pleaded guilty to conspiracy to distribute cocaine
and cocaine base, and possession with intent to distribute cocaine and
cocaine base, in violation of 21 U.S.C. § 846 (1994), and distribution
of cocaine and cocaine base, in violation of 21 U.S.C. § 841 (1994).
Evans appeals his conviction and sentence. We affirm.

In October and November 1994, Evans' co-defendants contacted a
Roanoke City Police Department confidential informant regarding
drug debts owed to Evans. The confidential informant paid the debts
and then arranged to purchase one ounce of cocaine from Evans.
Evans was arrested during the drug transaction. Following a search of
Evans's residence, police seized $12,800, records, scales, and packag-
ing materials. Police also seized several weapons and boxes of ammu-
nition.

The grand jury returned a seven-count indictment against Evans
and his co-defendants. Evans was named in five of the counts and
pleaded guilty to three counts. Prior to sentencing, Evans moved to
withdraw his guilty plea on the ground that the Government failed to
file a motion pursuant to U.S. Sentencing Guidelines Manual § 5K1.1
(1995). The district court denied the motion and sentenced Evans to
120 months imprisonment.

On appeal, Evans asserts that the district court erred in not granting
his motion to withdraw his guilty plea because he received ineffective
assistance of counsel. Evans contends that counsel gave him errone-
ous sentencing advice by underestimating his criminal history cate-
gory and its impact on his potential sentence, and as a result of this
advice he involuntarily pled guilty. Rule 32(e) of the Federal Rules
of Criminal Procedure provides that a court may permit withdrawal
of a guilty plea if the motion is made before sentencing and if the
defendant establishes any "fair and just" reason for withdrawal of the
plea. See Fed. R. Crim. P. 32(e); United States v. Hyde, ___ U.S. ___,
65 U.S.L.W. 4369 (U.S. May 27, 1997) (No. 96-667). Competent
counsel is one of the factors this court considers when determining
whether the reason advanced by the defendant is a"fair and just" rea-

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son. See United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).
In order for ineffective assistance of counsel to constitute a "fair and
just" reason to withdraw a guilty plea, counsel's ineffectiveness must
fall below an objective standard of reasonableness. See United States
v. Lambey, 974 F.2d 1389, 1395 (4th Cir. 1992) (citing United States
v. DeFreitas, 865 F.2d 80, 82 (4th Cir. 1989)). While misinformation
regarding sentencing possibilities could be a "fair and just" reason to
withdraw a guilty plea, an attorney's erroneous estimate of the appli-
cable guideline range does not always warrant withdrawal of a defen-
dant's guilty plea. See Lambey, 974 F.2d at 1395.

The record shows that Evans discussed with his attorney the sen-
tencing possibilities. Even if counsel erroneously advised Evans,
however, the misinformation was corrected by the court at the Rule
11 hearing. See id. During the Rule 11 hearing, the court informed
Evans of the possible sentence for each count to which Evans was
pleading, and Evans stated that he understood the maximum possible
penalty for each count. The court further informed Evans that it could
not determine the guideline sentence in his case and that his sentence
could not be determined until after a presentence report had been filed
and objections submitted and decided upon. Also, Evans's plea agree-
ment stated that no representation had been made as to the final dispo-
sition of the matter. Therefore, this claim lacks merit.

Evans next claims that the district court erred by imposing a sen-
tence within a guideline range exceeding twenty-four months, without
stating its reasons in open court. See 18 U.S.C. § 3553(c)(1) (1994).*
The review of sentences is limited to sentences"imposed in violation
of law" or those "imposed as a result of an incorrect application of the
sentencing guidelines." See 18 U.S.C.§ 3742(a)(1)-(2) (1994). In
United States v. Jones, 18 F.3d 1145, 1151 n.4 (4th Cir. 1994), this
court reserved the question of reviewability of a failure to explain rea-
sons under § 3553(c)(1). Even assuming that the district court's fail-
ure to explain its reasons is reviewable, because Evans did not object
or request an explanation, the district court's failure to explain its rea-
sons can only be reversed if there is plain error. See Fed. R. Crim. P.
52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993). Our
_________________________________________________________________
*The guidelines range was 110 to 137 months, and Evans was sen-
tenced to 120 months, just below the middle of the guidelines range.

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review of the record does not suggest that the district court committed
plain error. The district court recited Evans's criminal history in rela-
tion to his sentencing and listed, as its reason for imposing the sen-
tence in the judgment, "defendant's criminal history." Further, the
alleged error does not seriously affect the fairness and integrity of
judicial proceedings. Therefore, we find that the district court did not
commit plain error warranting correction. Accordingly, we affirm
Evans's conviction and sentence.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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