UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 95-5014

AARON DARRYL THOMAS, a/k/a "A,"
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 95-5226

AARON DARRYL THOMAS, a/k/a "A,"
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge;
Robert G. Doumar, Senior District Judge.
(CR-94-69-N)

Argued: May 9, 1996

Decided: May 29, 1996

Before WIDENER, NEIMEYER, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: Sterling Harrisbe Weaver, Sr., WEAVER LAW
OFFICES, Portsmouth, Virginia, for Appellant. Kevin Michael Com-
stock, Assistant United States Attorney, Norfolk, Virginia, for Appel-
lee. ON BRIEF: Helen F. Fahey, United States Attorney, Norfolk,
Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

The single issue raised in this case is whether the district court
abused its discretion in refusing to permit Aaron Darryl Thomas to
withdraw his guilty plea. Finding that the court did not err, we affirm.

I.

Thomas, along with four other defendants, was charged in a multi-
count indictment with, inter alia, engaging in a continuing criminal
enterprise, money laundering, and numerous drug related offenses.
J.A. 30-85. At his arraignment on May 25, 1994, Thomas pled not
guilty to all charges and demanded a jury trial; he was represented by
court-appointed counsel, Larry Shelton, at the arraignment. J.A. 6-7.
On June 10, 1994, Shelton was forced to withdraw as Thomas' coun-
sel because of a conflict of interest. J.A. 10-11. Duncan St. Clair was
appointed by the court in Shelton's place. J.A. 11.

On July 22, 1994, a Rule 11 hearing was held and Thomas asked
to change his plea from not guilty to guilty on several of the counts
in the indictment. J.A. 18-19. Before accepting Thomas' plea, the dis-
trict court extensively questioned Thomas as to whether he under-
stood the charges and the consequences of pleading guilty. J.A. 186-

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217, 241-275. At one point, Thomas expressed confusion about the
proceedings and asked to be allowed to discuss the matter with his
attorney, St. Clair. J.A. 216. The court agreed and recessed the hear-
ing so that Thomas could confer with his counsel. J.A. 217. When
Thomas returned, the court asked if he "still wanted to plead".
Thomas twice responded, "Yes, Sir." J.A. 241. The court then contin-
ued to question Thomas as to his understanding of what he was doing.
J.A. 241-271. The court went beyond rote questioning, extensively
inquiring to ensure that Thomas understood the consequences of
pleading guilty. Id. Only then did the court accept Thomas' guilty
plea. J.A. 272.

On September 9, 1994, the court received a letter from Thomas'
girlfriend in which she indicated that Thomas wanted to withdraw his
guilty plea. J.A. 408-411, 752. On October 14, 1994, Andrew Michael
Sacks was substituted as counsel for Thomas. J.A. 22. The court held
a hearing on Thomas' motion to withdraw his guilty plea on Decem-
ber 14-15, 1994. J.A. 279-769. At the hearing, Thomas contended that
St. Clair had not provided him with adequate assistance of counsel but
had pressured him into pleading guilty without considering his possi-
ble defenses. J.A. 396-402.

The court heard testimony from Thomas, Shelton, St. Clair and a
federal agent. Thomas testified to St. Clair's inadequate representa-
tion, including his allegation that St. Clair did not meet with him to
discuss defenses and had advised him that he would receive a lenient
sentence. J.A. 396-405. In contrast, St. Clair testified that he did dis-
cuss defenses with Thomas on numerous occasions, J.A. 540-541, and
that, in the face of the government's overwhelming evidence he deter-
mined it to be in Thomas's best interest to plead guilty. J.A. 544, 557.
St. Clair also testified that he did not mislead Thomas about the sen-
tence he faced. J.A. 558-560.

Thomas testified that he attempted to withdraw his plea the day
after it was entered. J.A. 405. He also testified that he had "a defense"
and could provide witnesses to support his claim, J.A. 344, and that
he was not guilty of the crimes charged. J.A. 483. However, when the
court closely scrutinized Thomas as to the names of the witnesses and
the substance of their testimony, it became clear that Thomas did not

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have the evidence to support a defense, let alone to establish his inno-
cence. J.A. 344-94.

At the conclusion of the hearing, the court determined that Thomas
"was not worthy of belief." J.A. 757. The court found that Thomas
had not, in fact, attempted to withdraw his plea right away but had
waited until September 9, over a month after he had entered into the
plea. J.A. 752. The court further found that St. Clair had "fully
advised" Thomas, providing him with adequate assistance of counsel.
J.A. 763. Therefore, the court denied Thomas's motion to withdraw
his guilty plea. Id.

II.

A defendant has no absolute right to withdraw a guilty plea. United
States v. Rios-Ortiz, 830 F.2d 1067 (9th Cir. 1987). Instead, the dis-
trict court has discretion as to whether to permit the withdrawal based
on a defendant's showing of "any fair and just reason." Fed. R. Crim.
P. 32(d). The court must balance the following factors:

          First, whether the defendant has offered credible evidence
          that his plea was not knowing and voluntary.

          Second, whether the defendant has credibly asserted his
          innocence.

          Third, whether there has been a delay between the entering
          of the plea and the filing of the motion.

          Fourth, whether the defendant has had close assistance of
          competent counsel.

          Fifth, whether withdrawal will cause prejudice to the gov-
          ernment.

          Sixth, whether withdrawal will inconvenience the court and
          waste judicial resources.

United States v. Moore, 931 F.2d 245, 248 (4th Cir.), cert. denied,
502 U.S. 857 (1991).

                    4
Examination of these factors reveals that the district court did not
abuse its discretion in denying Thomas's request to withdraw his
guilty plea. First, the district court examined whether Thomas's plea
was knowing and voluntary. The court found that Thomas was "an
intelligent, articulate, scheming, streetwise individual who knew
exactly what he was doing and had a thorough awareness of exactly
what charges were against him and what his position was." J.A. 757.
The district court heard the testimony first-hand; we are in no position
to second-guess its assessment.

Second, the court did not believe that Thomas had credibly asserted
his innocence. At great length, the court inquired as to any defenses
Thomas might have. J.A. 344-394. Thomas's main argument was that
his parents would testify that he would not have done the crimes, but
the court examined the nature of the possible testimony and found
that Thomas had not asserted a credible defense, let alone credibly
asserted his innocence. J.A. 761.

As to the third issue, the court found that Thomas had not asked
to withdraw his plea immediately but had waited from July 22 until
September 9 before attempting to withdraw his plea, a substantial
period of time. J.A. 752. Fourth, the court found that St. Clair pro-
vided Thomas with competent assistance and that Thomas was fully
advised of his situation before pleading guilty. J.A. 763.

As to the fifth factor, the court noted that it appeared that Thomas
had waited for numerous witnesses to disperse (and until his brother
also tried to withdraw his plea) before attempting to withdraw the
plea. J.A. 758. Allowing him to withdraw his plea would cause preju-
dice to the government in that it would be forced to gather together
all the evidence again. Finally, as to the sixth Moore factor, we have
recognized that, in any circumstances, withdrawal of a guilty plea
wastes judicial resources "to some extent." United States v. Sparks, 67
F.3d 1145, 1154 n.5 (4th Cir. 1995). Consequently, having deter-
mined that the other factors weigh against granting Thomas's motion,
we need not assess precisely how much withdrawal of his guilty plea
would inconvenience the court. Id. at 1154.

All these findings are, of course, in addition to Thomas's sworn
statements during the Rule 11 hearing that he knew what he was

                    5
doing and did so voluntarily. J.A. 187-217, 241-275. The record
reflects that the district court did an exemplary job in both ensuring
that Thomas knew what he was doing at the Rule 11 hearing and in
ensuring that there was no "fair and just" reason for the withdrawal
of the plea at the withdrawal hearing. Accordingly, Thomas's appeal
is without merit.

For the foregoing reasons, Thomas's convictions and sentences are

AFFIRMED.

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