                                                                             F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                            August 8, 2006
                                      TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                             Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,                             No. 05-3275
 v.                                                (D.C. No. 05-CR-10027-01-WEB)
                                                          (District of Kansas)
 DANNY M. GRIFFIN,

           Defendant - Appellant.



                                   ORDER AND JUDGMENT *


Before MURPHY, HOLLOWAY and McKAY, Circuit Judges.


       Defendant-Appellant, Danny M. Griffin, challenges the denial of his motions to

withdraw his guilty plea by the United States District Court for the District of Kansas.

The court denied his original motion to withdraw the guilty plea because he failed to

demonstrate a fair and just reason for withdrawal of his plea of guilty. Moreover, the

court found that Griffin did not assert his innocence. After Griffin renewed the motion

and asserted his innocence, however, the court again denied his motion, finding that his

assertion of innocence was conclusory and not supported by evidence.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.



       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
                                    BACKGROUND

       On February 8, 2005, defendant Danny Griffin was indicted on one count of

unlawful possession with intent to distribute approximately 200 grams of a mixture

containing crack cocaine. An Assistant Federal Public Defender was appointed to

represent him. The trial was scheduled for April 12, 2005.

       On April 8, the court was notified by defense counsel that the defendant wanted to

enter a plea of guilty and a change-of-plea hearing was therefore scheduled for April 11,

2005. When the defendant appeared at the hearing, his counsel informed the court that

the defendant had decided he did not want to plead guilty, but wanted to go to trial. The

court informed the parties that the matter would proceed to trial the next day as

scheduled. The court denied a request by the defense for a continuance of the trial,

finding that the defendant had time to obtain any necessary witnesses and that the court

could consider granting a continuance at a later time if it proved necessary.

       Later in the afternoon of April 11, defense counsel informed the court that the

defendant again wanted to plead guilty. Accordingly, the court conducted a Rule 11

hearing late in the afternoon of April 11 at which time the defendant entered a plea of

guilty. The court determined that the defendant’s plea was made knowingly and

voluntarily, with a full understanding of its consequences. The court scheduled the

sentencing hearing for June 27, 2005.

       On April 19, 2005, the defendant filed a motion to withdraw his plea of guilty. At

a subsequent hearing the court denied the motion, finding the plea had been made

                                             -2-
knowingly and voluntarily and that the defendant had not demonstrated a fair and just

reason for withdrawal of his plea of guilty. The court also denied defendant’s request for

appointment of new counsel.

       On June 22, 2005, defense counsel filed a renewed motion to withdraw the plea of

guilty and renewed his request for appointment of new counsel and made a motion for a

continuance. In his renewed motion to withdraw his plea of guilty, the defendant again

argued that he did not understand the consequences of pleading guilty. He further argued

(for the first time) that he was innocent of the offense because he did not know there was

cocaine in the car he was driving.

       Finding that his assertion of innocence was directly contrary to his sworn

statements and answers to the court at the plea hearing, the court again denied defendant’s

motion. The court specifically noted that at the change-of-plea hearing, the Government

outlined its evidence against the defendant, and the defendant represented to the court that

the Government’s statement was true. In the court’s opinion, the Petition to Plead Guilty

executed by the defendant and his other statements to the court under oath confirm that he

had knowingly and intentionally possessed the cocaine in the car. Therefore, the court

held that defendant’s assertion of innocence was not sufficient to establish a fair and just

reason for withdrawal of the plea of guilty. Defendant was sentenced to 235 months’

imprisonment, inter alia.

                                      DISCUSSION

       On appeal, defendant claims that the district court erred in denying his motion to

                                             -3-
withdraw his guilty plea. He contends that his plea of guilty was not knowing and

voluntary because he was under stress, surprised by incriminating testimony from his

girlfriend, under a tight deadline to make a decision, and confused during the plea

hearing. We are not persuaded.

       A defendant may withdraw a plea of guilty before sentencing if the defendant can

show a fair and just reason for requesting the withdrawal. Fed. R. Crim. P. 11(d).

However, a defendant does not have an absolute right to withdraw a guilty plea. United

States v. Siedlik, 231 F.3d 744, 748 (10th Cir. 2000). The defendant bears the burden of

demonstrating a “fair and just reason” for his withdrawal of the plea. Siedlik, 231 F.3d at

748. It is within the sound discretion of the trial court to determine what circumstances

justify granting a motion to withdraw a guilty plea. United States v. Wade, 940 F.2d

1375, 1377 (10th Cir. 1991). Such motions to withdraw guilty pleas should be “freely

allowed and treated with liberality . . .” Id.

       This Court considers seven factors in determining whether the defendant has

satisfied his burden of showing that the district court acted unjustly or unfairly in denying

his motion to withdraw his plea:

       (1) whether the defendant has asserted his innocence; (2) whether withdrawal
       would prejudice the government; (3) whether the defendant delayed in filing
       his motion, and if so, the reason for the delay; (4) whether withdrawal would
       substantially inconvenience the court; (5) whether close assistance of counsel
       was available to the defendant; (6) whether the plea was knowing and
       voluntary; and (7) whether the withdrawal would waste judicial resources.

United States v. Yazzie, 407 F.3d 1139, 1142 (10th Cir. 2005) (quoting United States



                                                 -4-
v. Sandoval, 390 F.3d 1294, 1298 (10th Cir. 2004)). It is undisputed here that the

defendant did not assert his innocence in his first motion to withdraw guilty plea. It is

also undisputed that the district court considered each of the seven Sandoval factors

before denying defendant’s motion.1 In view of this record, we cannot conclude that the

district court acted unjustly or unfairly in denying that motion.

       Nevertheless, the defendant asserted his innocence when he renewed his motion to

withdraw his guilty plea and we must therefore decide whether the court abused its

discretion in denying the renewed motion. Defendant’s renewed motion rested on the

claim that he did not know there was cocaine in the car he was driving. But he failed to

provide any evidence to support the claim. The claim also is directly contrary to his

sworn statements and answers to the court at the plea hearing and the petition to plead

guilty executed by him. This court has held that conclusory statements made by the

defendant are, “absent any other evidence, insufficient to show that his plea was

involuntary.” United States v. Kramer, 168 F.3d 1196, 1200 (10th Cir. 1999).

Accordingly, we cannot conclude that the district court erred in finding that defendant’s

claim was insufficient to establish a just and fair reason to withdraw his guilty plea.

       The defendant asserts that he was under stress, surprise at his girlfriend’s

       1
          The court weighed each of these factors during consideration of defendant’s
motion and found that: (1) the defendant had not asserted his innocence; (2) there was no
evidence of significant prejudice to the government; (3) there was no significant delay in
filing the defendant’s motion; (4) inconvenience to the court would be minor; (5) the
defendant had received effective assistance of counsel throughout the proceedings; (6) the
defendant’s plea was knowing and voluntary; and (7) there would be a waste of some
judicial resources. (Vol. I, Doc. 28 at 5).

                                             -5-
incriminating testimony, a tight deadline, or confused during the change of plea hearing.

The record, however, does not support his assertion. The defendant was indicted on

February 8, 2005, and the case was set for trial on April 12, 2005, in a general order of

discovery and scheduling issued on February 15, 2005. On April 4, 2005, the district

court held a status conference. (Vol. I, Doc. 14). On April 8, 2005, the court received

notice from defense counsel that the defendant intended to enter a guilty plea and a

hearing was scheduled for April 11, 2005. (Vol. II, at 4). On April 11, 2005, the

defendant announced to the district court that he did not want to plead guilty but wanted

to go to trial. (Vol. IV, at 2). The defendant personally requested a two week

continuance stating that he needed to get his witnesses together. (Vol. IV, at 2-3). The

district court denied the motion for a continuance, finding that the defendant would have

time to obtain his witnesses while the government presented its case. (Id. at 4). Later in

the day on April 11, 2005, the defendant notified the district court that he had

reconsidered the matter and wanted to plead guilty. (Vol. III, at 2). Thus, the defendant

knew in February that his trial was scheduled on April 12, 2005. Therefore, he had ample

time to decide whether to plead guilty and to prepare for trial.

       During the plea hearing, the district court entered into an exhaustive colloquy with

the defendant, explaining the plea and petition and the defendant continually assured the

court that he understood the proceedings. (Vol. III). When the defendant had a question

or did not understand, he asked the court and conferred with his counsel for clarification.

(Vol. III, at 5, 12). The district court instructed the defendant at the commencement of

                                             -6-
the hearing: “Anytime you don’t understand what I’m asking you, you ask me again or

talk to Mr. Henderson [defense counsel] about it. . . .” (Id. at 3). At the conclusion of the

change of plea hearing the district court asked the defendant “Are you offering your plea

of guilty with a full understanding of all the matters set forth in this petition and in the

certificate of your attorney?” The defendant responded, “Yes.” The court then asked, “Is

there anything about it that you don’t understand and want to ask me?” The defendant

answered, “No, sir.” (Vol. III, at 19). This record directly contradicts defendant’s claim

that he lacked understanding when he entered the plea of guilty. Defendant was

represented by counsel and he fully conferred with counsel during the proceedings. We,

therefore, conclude that the district court properly found that the defendant’s plea was

made with a full understanding of the consequences of the plea and that the plea was

voluntary.

       Accordingly, the district court’s judgment is

              AFFIRMED.

                                                           Entered for the Court

                                                           William J. Holloway, Jr.
                                                           Circuit Judge




                                              -7-
