UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5488

ANTHONY DEVORE HAILSTOCK,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Greenville.
William B. Traxler, Jr., District Judge.
(CR-94-813)

Submitted: October 15, 1996

Decided: December 16, 1996

Before ERVIN, NIEMEYER, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James Robert Mann, Greenville, South Carolina, for Appellant. Har-
old Watson Gowdy, III, OFFICE OF THE UNITED STATES
ATTORNEY, Greenville, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Anthony Devore Hailstock pled guilty to conspiracy to possess
with the intent to distribute and to distribute cocaine base, in violation
of 21 U.S.C. § 846 (1994). The district court sentenced Hailstock to
serve 262 months imprisonment. He appeals his conviction and sen-
tence. Hailstock's attorney has filed a brief in accordance with Anders
v. California, 386 U.S. 738 (1967), raising three issues but stating
that, in his view, there are no meritorious issues for appeal. Finding
no reversible error, we affirm Hailstock's conviction and sentence.

Hailstock's counsel specifically asserts that the district court erred
by sentencing Hailstock as a career offender, by refusing to grant
Hailstock's motion for a downward departure from the United States
Sentencing Guidelines, and by refusing to modify Hailstock's sen-
tence based on the disparity of the sentences received by Hailstock
and his co-defendants. In Hailstock's pro se supplemental brief, he
contends that his guilty plea lacked an independent factual basis, that
his plea was not given knowingly, and that the district court erred by
refusing to allow him to withdraw his guilty plea.

Hailstock was over eighteen years old when he committed the
instant felony offense, which involved a controlled substance. Hail-
stock also has two prior crimes-of-violence felony convictions. In
1989, Hailstock was convicted of strong-arm robbery and receiving
and possessing stolen goods and sentenced to serve ten years impris-
onment. He was also convicted of assault and battery of a high and
aggravated nature and sentenced to serve an additional ten-year term.
See United States Sentencing Commission, Guidelines Manual,
§ 4B1.1 (Nov. 1994) (outlining career offender status requirements).
Hailstock's criminal history satisfied the career offender criteria;
therefore, we find that he was properly sentenced according to the
career offender provision.

Hailstock claims he was entitled to a downward departure in sen-
tencing because he played a minor role in the offense, because of the
unconscionable disparity between the sentences imposed on Hailstock
and his co-defendants, and because of the minor nature of Hailstock's

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prior conviction for assault and battery. However, these claims are not
properly before this court because the district court's refusal to depart
downward is not reviewable on appeal. United States v. Bayerle, 898
F.2d 28, 30 (4th Cir.), cert. denied, 498 U.S. 819 (1990).

Hailstock also asserts that the district court should have exercised
its discretion and modified his sentence because of the disparity in the
lengths of sentences imposed on him and his co-defendants.* The dis-
trict court is only allowed to depart from the applicable sentencing
guidelines range to correct the disparity of the sentences received
between co-defendants upon proof of actual prosecutorial misconduct.
United States v. Fonville, 5 F.3d 781, 783 (4th Cir. 1993), cert.
denied, ___ U.S. ___, 62 U.S.L.W. 3754 (May 16, 1994) (No. 93-
7612). Hailstock fails to allege prosecutorial misconduct, and we find
no evidence of it. Therefore, the district court did not abuse its discre-
tion in refusing to modify Hailstock's sentence.

Hailstock's assertion that his plea was accepted without an inde-
pendent factual basis is directly belied by the record. A special agent
with the South Carolina Law Enforcement Division informed the dis-
trict court of Hailstock's involvement in the offense. We find that this
recitation of the evidence satisfied all the essential elements of the
offense and sufficiently supported Hailstock's guilty plea.

We also find that Hailstock's guilty plea was knowingly and intelli-
gently given. The district court found Hailstock to be legally compe-
tent to offer his plea. He was informed of the essential elements of
the offense to which he was pleading guilty. The district court also
advised Hailstock of the possible punishment range. Further, Hail-
stock responded affirmatively when questioned as to whether he
understood the nature of the proceedings and if he still wished to offer
a guilty plea after being informed of the punishment range.

Hailstock also challenges the district court's refusal to grant his
motion to withdraw his guilty plea. We review a district court's
refusal to allow plea withdrawal under an abuse of discretion stan-
_________________________________________________________________
*One of Hailstock's co-defendants, the actual target of the undercover
investigation, received a sentence of 121 months imprisonment. The
other was sentenced to serve 60 months imprisonment.

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dard. United States v. Brown, 617 F.2d 54, 55 (4th Cir. 1980). To
warrant a withdrawal of a plea, a defendant has the burden of showing
a "fair and just" reason for the withdrawal, even if the government has
not shown that it would be prejudiced by the withdrawal. United
States v. Moore, 931 F.2d 245, 248 (4th Cir.), cert. denied, 502 U.S.
857 (1991). Because the district court found that Hailstock's plea was
knowingly and voluntarily given; that the defendant had not credibly
asserted his legal innocence; that there was a substantial delay
between the entering of the plea and the motion to withdraw; and, that
to allow a withdrawal of his plea at that stage of the proceedings
would result in a waste of judicial resources, the district court prop-
erly concluded that Hailstock failed to show a fair and just reason that
would warrant withdrawal of his guilty plea. We therefore find that
the district court did not abuse its discretion in denying Hailstock's
withdrawal motion.

In accordance with the requirements of Anders , we have examined
the entire record in this case and find no other meritorious issues for
appeal. This court requires that counsel inform his client, in writing,
of his right to petition the Supreme Court of the United States for fur-
ther review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel's motion must state that a copy thereof was served on the client.
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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