                                                                            F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             FEB 23 2001
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                        No. 00-3212
                                                 (D.C. No. 99-CR-10116-01-JTM)
 JUAN DE DIOS MAGALLANES-                                   (D. Kan.)
 ROBELO,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before EBEL, KELLY and LUCERO, Circuit Judges.


      Juan de Dios Magallanes-Robelo was indicted for being present in the

United States after having been convicted of an aggravated felony and deported.

(Vol. I, doc. 1.) He was represented by counsel and initially elected to go to trial,

but then pleaded guilty during the jury-selection process. 1 (Vol. II, doc. 72, at 5.)

      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This Order and Judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      1
          We do not have the transcript of the guilty plea in the appellate record.
                                                                          (continued...)
Two weeks later, he filed a pro se motion to withdraw his guilty plea. (Vol. I,

doc. 40.) He asserted that he was coerced into pleading guilty and that his prior

deportation proceeding violated his due process rights. (Vol. I, doc. 40, at 4; doc.

41.) The district court denied his motion to withdraw the plea. (Vol. II, doc. 72, at

11.)

       On appeal, Magallanes’s counsel has filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967), and a motion to withdraw as counsel.

We have reviewed the briefs, including Magallanes’s pro se filings, and have

made an independent review of the record. We GRANT what we have construed

as Magallanes’s motion to file a supplemental brief, and have considered that

brief as well. Because we find no error in the proceedings below, we GRANT

counsel’s motion to withdraw.

       We review the voluntariness of a guilty plea de novo. See United States v.

Kramer, 168 F.3d 1196, 1200 (10th Cir. 1999). The record does not support

Magallanes’s contention that his plea was coerced. It appears that the district

court inquired carefully into the voluntariness of the plea at the time it accepted

it. (Vol. II, doc. 72, at 11.) He was told that the jury was ready and he could

proceed to trial if he so wished. (Id.) Other than Magallanes’s assertion that he



      (...continued)
       1

Accordingly, all we have to go on is the transcript of the hearing where
Magallanes sought to withdraw his plea.

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was coerced, we see nothing in the record that casts doubt on the voluntariness of

his plea.

      We review the district court’s denial of a motion to withdraw a guilty plea

for an abuse of discretion. See Kramer, 168 F.3d at 1202. A defendant must show

a “fair and just reason” to allow withdrawal, and we have set forth specific

factors for the district court to consider:

      (1) whether the defendant has asserted his innocence; (2) prejudice to
      the government if the motion is granted; (3) defendant’s delay in
      filing the motion; (4) inconvenience to the court if the motion is
      granted; (5) defendant’s assistance of counsel; (6) whether the plea
      was knowing and voluntary; and (7) the waste of judicial resources.

Id. In this case, although the district court did not specifically discuss each of

these factors, it is apparent that withdrawal would have prejudiced the

government and wasted judicial resources. Magallanes’s case was ready to be

tried, and the government represented to the court that it had its witnesses

present. (Vol. II, doc. 72, at 5.) Jury selection had already begun. (Id.) If

Magallanes were permitted to withdraw his plea, the witnesses would have to be

recalled and jury selection would have to begin anew. In addition, as noted above,

we find that the plea was knowing and voluntary. Finally, Magallanes had

assistance of counsel throughout this process. Although he now asserts he

received ineffective assistance, we note that at the time he stated he was satisfied

with the representation he received at the sentencing hearing where his motion to


                                          -3-
withdraw the plea was considered. (Id. at 15.) Even if we were to assume that the

other factors weighed in Magallanes’s favor, under the circumstances the district

court did not abuse its discretion in denying his motion to withdraw his guilty

plea.

        Magallanes attempts to assert that he received ineffective assistance of

counsel. We do not believe the record is fully developed on this issue. If he

wishes to pursue the matter, Magallanes should file a motion under 28 U.S.C.

§ 2255. This will allow the district court to consider the matter in the first

instance and create an adequate record for appellate review. See United States v.

Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995) (en banc).

        For substantially the reasons given by the district court, we AFFIRM.



                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




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