                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4597


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

KENNETH RAY JOHNSON,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:07-cr-00316-LMB-1)


Submitted:    May 27, 2009                  Decided:   June 19, 2009


Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Robert L. Jenkins, Jr., BYNUM & JENKINS, PLLC, Alexandria,
Virginia, for Appellant.   Dana J. Boente, Acting United States
Attorney, Morris R. Parker, Jr., Aaron M. Zebley, Assistant
United States Attorneys, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Kenneth Ray Johnson pled guilty to two counts of using

a   firearm    during   the   commission    of    a   crime    of   violence,   18

U.S.C. § 924(c) (2006).           He was sentenced to eighty-four months

in prison for the first offense and received a consecutive 300-

month sentence for the second offense.                 Johnson now appeals,

claiming that the district court abused its discretion when,

following a hearing at which Johnson and one of his defense

attorneys testified, it denied his motion to withdraw his guilty

plea.   We affirm.

              Withdrawal of a guilty plea is not a matter of right.

United States v. Ubakanma, 215 F.3d 421, 424                   (4th Cir. 2000).

The   defendant    bears    the   burden   of    showing   a    “fair   and   just

reason” for requesting the withdrawal of his plea.                       Fed. R.

Crim. P. 11(d)(2)(B).         “[A] ‘fair and just’ reason . . . is one

that essentially challenges . . . the fairness of the Rule 11

proceeding . . . .”           United States v. Lambey, 974 F.2d 1389,

1394 (4th Cir. 1992) (en banc).            An appropriately conducted Rule

11 proceeding “raise[s] a strong presumption that the plea is

final and binding.”        Id.

              We have identified six factors to be considered when

deciding whether to grant a motion to withdraw a guilty plea:

      (1)   whether the   defendant has  offered credible
      evidence that his plea was not knowing or otherwise
      involuntary; (2) whether the defendant has credibly

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     asserted his legal innocence; (3) whether there has
     been a delay between entry of the plea and filing of
     the motion; (4) whether the defendant has had close
     assistance of counsel; (5) whether withdrawal will
     cause prejudice to the government; and (6) whether
     withdrawal will inconvenience the court and waste
     judicial resources.

Ubakanma, 215 F.3d at 424 (citing United States v. Moore, 931

F.2d 245, 248 (4th Cir. 1991)) (footnote omitted).                         The first,

second, and fourth factors carry the most weight because they

relate to whether the defendant “has a fair and just reason to

upset settled systemic expectations by withdrawing [his] plea.”

United States v. Sparks, 67 F.3d 1145, 1154 (4th Cir. 1995).                          To

establish    that      counsel’s     ineffective      assistance       constitutes    a

fair and just reason to withdraw a guilty plea, the defendant

must show: “(1) that his counsel’s performance fell below an

objective     standard       of    reasonableness      and      (2)    that     he   was

prejudiced        in   the    sense      that    there     [was]       a      reasonable

probability that, but for counsel’s error, he would not have

pleaded    guilty      and   would    have     insisted    on    going     to   trial.”

Lambey, 974 F.2d at 1394 (internal quotation marks omitted).

            We     conclude       that   the    district        court’s    denial    of

Johnson’s motion was not an abuse of discretion.                           See United

States v. Dyess, 478 F.3d 224, 237 (4th Cir. 2007) (stating

standard     of    review).        Because      the   district        court     properly

conducted the Fed. R. Crim. P. 11 colloquy, we presume that




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Johnson’s plea was final and binding.                         See Lambey, 974 F.2d at

1394.

               The    district       court    appropriately         considered      the    six

factors    identified         above     and     correctly       determined       that     they

weighed   against       Johnson.         In    this     regard,      Johnson     failed     to

present     credible         evidence        that    his    plea     was    unknowing       or

involuntary.           Johnson       represented       to     the   court   at     his    plea

colloquy that he was pleading guilty with a full understanding

of the nature and consequences of the plea, and that the plea

was not induced by any “side deals,” threats, or coercion. He

acknowledged at the colloquy that he understood the immunity

provision      in     the    plea     agreement.       Further,      according      to     his

attorney, whose testimony at the motion hearing was credited

over    that    of    Johnson,       Johnson        decided    to   plead    guilty       upon

learning that his co-defendant had pled guilty and had agreed to

testify against Johnson at trial.                    Had Johnson gone to trial, he

very    likely       would    have    been     convicted       on   more    than    the    two

counts to which he pled guilty, and therefore would have been

subject to a significantly longer sentence.

               Nothing in the record in any way points to Johnson’s

legal innocence.             We note in particular Johnson’s admission of

guilt, the statement of facts that was incorporated into the

plea agreement, and his answers to the court’s questions at the

Rule 11 proceeding about the specifics of the offenses.

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          Testimony at the motion hearing clearly demonstrates

that Johnson had the close assistance of counsel, with whom he

met on many occasions.        The remaining three factors also weigh

against Johnson.       He filed his pro se motion to withdraw his

plea   approximately    two   months    after   he   entered   the   plea.

Permitting him to withdraw the plea would prejudice the United

States, which would have to reassemble witnesses and evidence,

and inconvenience the district court.

          We therefore affirm.          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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