UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-4966

BRANDON LEIGH CINTRON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-97-126-A)

Submitted: August 4, 1998

Decided: September 1, 1998

Before MURNAGHAN and LUTTIG, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Jerry L. Hall, Jr., TATE & BYWATER, LTD., Vienna, Virginia, for
Appellant. Helen F. Fahey, United States Attorney, LeDora Knight,
Assistant United States Attorney, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Brandon Leigh Cintron appeals his conviction for armed bank rob-
bery and for using and carrying a firearm during and in relation to a
crime of violence. Cintron alleges that the district court erred by
refusing to allow him to withdraw his guilty plea and that his counsel
was ineffective for failing to explore his history of mental illness prior
to the plea. For the reasons that follow, we affirm.

At the plea hearing, Cintron stated that he knowingly and voluntar-
ily pled guilty to the offenses, and that he generally was satisfied with
his attorney.1 The record reflects that the court complied with the dic-
tates of Fed. R. Crim. P. 11 in all respects. Although Cintron stated
that at the time of the hearing he was not being treated for any physi-
cal or mental condition, he did state that he had previously been
treated in 1992 or 1993 for depression and attempted suicide.2 The
court then ordered the parties to investigate Cintron's mental health
history. Based upon an evaluation by a clinical psychologist which
concluded that "it appears that Brandon's offense, was in some
respects a `product' of his mental illness," 3 Cintron filed a motion to
withdraw his guilty plea. In opposing the motion, the Government
noted that the defense psychologist agreed with its mental evaluations
that Cintron, at the time of his offense, knew the difference between
right and wrong.4 The court applied the six-factor test set forth in
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991), and denied
Cintron's motion to withdraw his guilty plea.

We review the district court's denial of the motion to withdraw the
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1 Cintron did, however, express dissatisfaction with the fact that his
attorney refused to file a second bond motion and the level of his attor-
ney's aggressiveness. (JA 85-86).
2 (JA 77, 98-99).
3 (JA 122).
4 Cintron's psychologist stated in his evaluation that "it appears that
Brandon certainly did apprehend the difference between right and wrong
at the time of the offense." (JA 123).

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guilty plea under Fed. R. Crim. P. 32(e) for an abuse of discretion.
See United States v. Wilson, 81 F.3d 1300, 1305-06 (4th Cir. 1996)
(stating standard of review). Withdrawal of a guilty plea is not a mat-
ter of right. See Moore, 931 F.2d at 248. The defendant bears the bur-
den of showing a "fair and just reason" for the withdrawal of his
guilty plea. See Fed. R. Crim. P. 32(e); United States v. Hyde, ___
U.S. ___, 117 S. Ct. 1630, 1631 (1997). "[A] `fair and just' reason
. . . is one that essentially challenges . . . the fairness of the Rule [Fed.
R. Crim. P.] 11 proceeding." United States v. Lambey, 974 F.2d 1389,
1394 (4th Cir. 1992) (en banc). An appropriately conducted Rule 11
proceeding, however, raises a strong presumption that the guilty plea
is final and binding. Id. Courts consider six factors in determining
whether to permit the withdrawal of a guilty plea: (1) whether defen-
dant offered credible evidence that the plea was not knowing or vol-
untary; (2) whether defendant credibly 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 defendant had assistance of
effective counsel; (5) whether withdrawal would prejudice the gov-
ernment; and (6) whether withdrawal would inconvenience the court
or waste judicial resources. See Moore, 931 F.2d at 248. The defen-
dant carries the burden of establishing a fair and just reason for with-
drawal, even if the government has not shown prejudice. See Lambey,
974 F.2d at 1393-94.

Cintron primarily contends that he should be allowed to withdraw
his guilty plea because counsel provided ineffective assistance by fail-
ing to adequately investigate his history of mental illness prior to the
plea.5 For ineffective assistance of counsel to constitute a fair and just
reason to withdraw a guilty plea, counsel's performance must fall
"`below an objective standard of reasonableness,'" and prejudice must
be shown by demonstrating that absent the substandard performance,
"`there is a reasonable probability that [defendant] would not have
pleaded guilty and would have insisted on going to trial.'" United
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5 To the extent Cintron raises other claims of ineffective assistance of
counsel that are unrelated to the withdrawal of his guilty plea, such
claims should be raised in a motion under 28 U.S.C.A. § 2255 (West
1994 & Supp. 1998), and not on direct appeal, unless the record conclu-
sively shows that counsel was ineffective. See United States v. King, 119
F.3d 290, 295 (4th Cir. 1997).

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States v. Craig, 985 F.2d 175, 179 (4th Cir. 1993) (quoting United
States v. DeFreitas, 865 F.2d 80, 82 (4th Cir. 1989)). Only if coun-
sel's ineffectiveness was of constitutional magnitude, may a defen-
dant withdraw a guilty plea. See id.

Based upon these facts we do not find that the district court abused
its discretion in denying Cintron's motion to withdraw his guilty plea.
At a hearing on the motion, the district court carefully applied the six-
factor test announced in Moore finding that: Cintron offered no credi-
ble evidence that his plea was unknowing or involuntary or that he
asserted his legal innocence;6 no existing delay between his plea and
motion to withdraw; Cintron had close assistance of competent coun-
sel; and the withdrawal would not particularly prejudice the Govern-
ment, inconvenience the court, or waste judicial resources. The court
rejected Cintron's position that his mental health evaluation supported
an insanity defense. Based upon the facts of the crime and the evalua-
tions of Cintron's mental state, we do not find that the district court
abused its discretion in denying the motion to withdraw. Neither do
we find Cintron's attorney was ineffective for allowing his client to
plead guilty. See Wilson, 81 F.3d at 1305-06. The record reveals that
Cintron's attorney determined that an insanity defense would be
unavailing based upon his investigation of the crime, Cintron's
methodical approach to the robbery, Cintron's detailed confession to
the police, and Cintron's state of mind at the time of the crime.
Indeed, defense counsel's determination that Cintron could not credi-
bly assert an insanity defense was supported by Cintron's subsequent
mental evaluations.7 Thus, we do not find Cintron suffered from inef-
fective assistance of counsel in this regard. See United States v.
Sparks, 67 F.3d 1145, 1153 (4th Cir. 1995) (holding that if facts sur-
rounding defendant's alleged defense are inadequate as a matter of
law, counsel cannot be considered ineffective under Moore). Accord-
ingly, we affirm the convictions.

We dispense with oral argument because the facts and legal conten-
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6 Cintron admitted his crime to the police, which was consistent with
witnesses and other evidence gathered in the investigation.
7 See 18 U.S.C. § 17 (1994) (stating federal standard for insanity
defense).

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tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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