                       United States Court of Appeals

                           FOR THE EIGHTH CIRCUIT


                                 ________

                               No. 96-3093
                                 ________



United States of America,           *
                                    *
           Appellee,                *
                                    *
      v.                            *         Appeal from the United
                                    *         States District Court for
Roosevelt D. Vallery,               *         the Western District of
                                    *         Missouri.
           Appellant.               *

                                _________

                   Submitted:       January 14, 1997

                  Filed:       February 24, 1997
                                 _________

Before RICHARD S. ARNOLD, Chief Judge, BEAM, Circuit Judge, and
ALSOP,1 District Judge.
                            _________


ALSOP, District Judge.


      Roosevelt D. Vallery appeals the district court’s2 denial of
his motion to withdraw his guilty plea.             Because this Court is
convinced the district court did not abuse its discretion in
denying Vallery’s motion, we affirm.




  1
   The Honorable Donald D. Alsop, United States District Judge
for the District of Minnesota, sitting by designation.
  2
   The Honorable D. Brook Bartlett, Chief United States District
Judge for the Western District of Missouri.
       On January 3, 1995, Appellant Roosevelt D. Vallery was named
in a two count indictment charging possession with intent to
distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A) (Count I) and use of a firearm in relation to a drug
trafficking offense in violation of 18 U.S.C. § 924(c)(1) (Count
II).    Vallery pleaded not-guilty to both offenses.


       After several continuances, a substitution of counsel at
Vallery’s   request,   and   a   court-ordered   mental   examination   of
Vallery, the district court, Senior Judge Elmo B. Hunter presiding,
scheduled the case for trial on December 4, 1995.         On November 22,
1995 and December 1, 1995, Vallery brought motions to have yet
another new attorney appointed.         Vallery claimed his appointed
attorney failed to adequately represent him.         The district court
denied both motions.


       On the day of trial, Vallery asked the district court to allow
him to retain his own counsel.      The district court refused this new
request, and indicated that the trial would go forward as planned.
Following voir dire, and pursuant to a plea agreement, Vallery
changed his plea to Count I, possession with intent to distribute
cocaine base, and to Count II, use of a firearm in relation to a
drug trafficking offense, to guilty.3


       On April 12, 1996, Vallery filed a Rule 32(d) motion to




  3
   The court subsequently dismissed Count II, use of a firearm in
relation to a drug trafficking offense, based on the Supreme
Court’s decision in United States v. Bailey,116 S.Ct. 501 (1995).
withdraw his guilty plea to Count I.       Vallery argued that the
court’s refusal to allow him to retain counsel on the day of trial
violated his right to counsel, and therefore created a fair and
just reason to withdraw his guilty plea.   The district court denied
Vallery’s motion.   The court then sentenced Vallery to 360 months
incarceration.   This direct appeal followed.


     Rule 32(d) of the Federal Rules of Criminal Procedure allows
withdrawal of a guilty plea before sentencing “upon a showing by
the defendant of any fair and just reason.”     To determine whether
the defendant has met that standard, a court may look at such
factors as:

          (1) whether defendant established a fair and
          just reason to withdraw his plea; (2) whether
          defendant asserts his legal innocence of the
          charge; (3) the length of time between the
          guilty plea and the motion to withdraw; and
          (4) if the defendants established a fair and
          just reason for withdrawal, whether the
          government would be prejudiced.


See, e.g., United States v. Boone, 869 F.2d 1089, 1091-92 (8th Cir.
1989), cert. denied, 493 U.S. 822, 110 S.Ct. 81, 107 L.Ed.2d 47
(1989).   The Court of Appeals will not reverse a district court’s
denial of a motion to withdraw a guilty plea unless it finds the
district court abused its discretion.   See United States v. Jagim,
978 F.2d 1032, 1036 (8th Cir. 1992), cert. denied, 508 U.S. 952,
113 S.Ct. 2447, 124 L.Ed.2d 664 (1993).


     Vallery claims the district court erred by denying his motion




                                 3
to withdraw his guilty plea because his motion was supported by a
“fair and just reason” and meets the other criteria for granting
such a motion.     The fair and just reason asserted by Vallery is
that he was forced to plead guilty to avoid going to trial with
counsel he did not believe would zealously represent his interests
after the District Court violated his right to choice of counsel.


     A trial court has broad discretion in determining whether to
grant a continuance or a request for substitution of counsel,
particularly when the issue is raised close to the date of trial.
See, e.g., United States v. Issaghoolian, 42 F.3d 1175, 1177-78
(8th Cir. 1994); United States v. Gallop, 838 F.2d 105, 108 (4th
Cir. 1988), cert denied, 487 U.S. 1211, 108 S.Ct. 2858, 101 L.Ed.2d
895 (1988); United States v. Lankford, 573 F.2d 1051, 1054 (8th
Cir.1978).   “Only an unreasoning and arbitrary insistence upon
expeditiousness in the face of a justifiable request for delay
violates   the   right   to   assistance   of   counsel.”   Urquhart    v.
Lockhart, 726 F.2d 1316, 1319 (8th Cir. 1984).       Similarly, while an
accused who is financially able to retain counsel of his own
choosing must not be deprived of a reasonable opportunity to do so,
the right to retain counsel of one’s choice is not absolute.           See
Urquhart, 726 F.2d at 1319.       The right to choice of counsel must
not obstruct orderly judicial procedure or deprive courts of their
inherent power to control the administration of justice.               See
United States v. Gallop, 838 F.2d 105, 108 (4th Cir. 1988).        If a
defendant’s “attempted exercise of his choice is dilatory, the
trial court can require him to proceed with designated counsel.”
United States v. Reeves, 674 F.2d 739, 748 (8th Cir. 1982).




                                    4
     This Court has held on facts strikingly similar to these that
a defendant is not always entitled to a continuance for the purpose
of retaining new counsel.       In United States v. Lankford, 573 F.2d
1051 (8th Cir. 1978), the defendants moved for a continuance on the
day of trial for the purpose of hiring new counsel.               This Court
ruled that the District Court had not abused its discretion by
refusing to grant the defendants’ motion.             Id. at 1054.


     Similarly, in Urquhart v. Lockhart, 726 F.2d 1316 (8th Cir.
1984), the defendant claimed he was denied effective assistance of
counsel when the trial court denied his motion for a continuance.
The defendant claimed that his mother was willing to pay for
retained counsel.     Id. at 1319.        However, the defendant had over
two and one half months to retain counsel between the date of his
arrest and the time of trial, and had moved for the continuance on
the day of trial.    Id.     This Court found based on the circumstances
that the trial court had not violated the right to counsel by
denying the motion for a continuance.           Id.


     Finally, in United States v. Reeves, 674 F.2d 739 (8th Cir.
1982), the defendants brought a motion for a continuance the day
before trial.   The trial court denied the motion for a continuance.
Id. at 748.   Once again, this Court ruled that the District Court’s
denial   of   the   motion    was   not    an   abuse   of    discretion   and
specifically found that “the district court was in a good position
to weigh the need for a change in counsel and the inconvenience to
the litigants, the witnesses, other counsel and the court arising
from the belated request for a continuance.”            Id.




                                      5
     Here, the district court clearly did not violate Vallery’s
right to counsel.   Therefore, Vallery can not show a “fair and just
reason” to support his motion to withdraw his guilty plea.


     The other factors a court may look at when determining whether
to grant a motion to withdraw a guilty plea also weigh against
Vallery.   First, nowhere does Vallery assert legal innocence.   In
addition, over four months had passed between Vallery’s guilty plea
and his motion to withdraw his guilty plea.    Although these facts
are not necessary to decide whether Vallery can show a “fair and
just reason” for his motion to withdraw, they support the District
Court’s decision to deny Vallery’s motion.    Vallery has failed to
meet the standard for granting a motion to withdraw a guilty plea
articulated in Rule 32(d). Accordingly, the District Court’s order
is AFFIRMED.



A true copy.


     Attest:


           CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                  6
