                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 11-1041
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Arkansas.
Katherine Anne West,                    *
                                        *     [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: October 17, 2011
                                Filed: December 15, 2011
                                 ___________

Before MURPHY, BYE, and SMITH, Circuit Judges.
                           ___________

PER CURIAM.

      Katherine West pleaded guilty to one count of mail fraud, in violation of 18
U.S.C. § 1341, and one count of bank fraud, in violation of 18 U.S.C. § 1344. On
appeal, she contends that the district court1 erred in denying her motion to withdraw
her guilty plea. We affirm.




      1
       The Honorable Billy Roy Wilson, United States District Judge for the Eastern
District of Arkansas.
                                    A. Background
      West was charged with seven counts of mail fraud, in violation of § 1341, and
145 counts of bank fraud, in violation of § 1344. At a change-of-plea hearing, West
pleaded guilty pursuant to a plea agreement to one count of mail fraud and one count
of bank fraud. The district court dismissed the remaining counts on the government's
motion.

       At the hearing, the district court and West discussed West's current well-being
and state of mind, as well as her understanding of the guilty plea and plea agreement.
The district court asked West if she was "taking any prescription medication that
might affect [West's] thinking today," and West responded that although she was
taking prescription medication, it was "nothing that'll affect my thinking." West's
attorney acknowledged that West was "on various medications," but he felt that "she
[was] competent to proceed."

       West confirmed for the district court that her "mind [was] real clear" and that
she was "fully at [herself]." She also acknowledged that she had spoken with her
attorney "about what it means to plead guilty to two serious crimes, two felonies" and
that she "underst[ood] the consequences" of pleading guilty. She verified that no
promises were made to her in exchange for her guilty plea and that no "threats [had]
been made toward [her] to get [her] to plead guilty." And, she stated that she had
reviewed the plea agreement with her attorney, understood it, and signed it. Because
she felt that "the plea agreement . . . [was] in [her] best interest," West asked the
district court to accept it.

      The district court asked West if she would "like a recess" in order to speak with
her attorney prior to the entry of her plea. West responded, "No, sir." She then
pleaded guilty to one count of mail fraud and one count of bank fraud. The district
court asked, "Is that because you are in truth and in fact guilty?" West responded,
"Yes, sir." She confirmed that she "knew that [she] w[as] stealing from [her] company

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when [she] did this bank fraud and mail fraud." West "knew [that she] w[as] violating
the law." Thereafter, the district court asked West's attorney whether he "kn[ew] of
any reason [that the district court] shouldn't accept the plea of guilty to these two
counts," and West's attorney responded, "No, Your Honor."

       Following the change-of-plea hearing, West moved to withdraw her guilty plea,
arguing that (1) "she entered the plea of guilty because she felt that her health would
suffer adversely from a trial and, as a result of her physical symptoms and worry
about trial, decided to plead guilty and forego her defense that she was authorized to
take the money at issue"; and (2) she could substantiate a "legal innocence" defense
because "she was authorized by an owner of the business to take the funds at issue."

       At sentencing, West attempted to justify the request to withdraw her guilty
plea. On direct examination, she reiterated that she pleaded guilty out of concern for
her health and her ability to withstand a trial. She also added a basis for the plea
withdrawal that was not mentioned in her written motion. According to West, she and
her family "had been threatened by [her] ex-employers [and] their family." In
response to the district court's questioning, West testified that, although she did not
notify the court, she had received these threats prior to pleading guilty.

        On cross-examination, West confirmed that, at both her change-of-plea hearing
and sentencing hearing, she had promised to tell the truth. West acknowledged that,
at the time of her change-of-plea hearing, she told the court that she was "guilty of the
two counts that [she] pled to." West retracted her acceptance of guilt, stating that she
was "not guilty of the counts." According to West, she "lied under oath in June of
2010 [at her change-of-plea hearing]." When the government showed West her plea
agreement, she confirmed that she had signed it and carefully reviewed it. She
acknowledged the signed plea agreement's explicit statement that "no one has
threatened or forced the defendant in any way to enter into this agreement and
addendum." West admitted that, at the prior hearing, she had told the district court,

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under oath, that no threats had been made against her to get her to plead guilty. She
also admitted that she told the district court, under oath, that she was guilty of the two
counts.

       Thereafter, the district court denied West's motion to withdraw her guilty plea,
stating:

      Well, I think the record of the guilty plea hearing was pretty clear that
      she pled guilty with full knowledge of the facts and understanding what
      she was undertaking, and she admitted her guilt thoroughly. And on top
      of that, she gave every appearance at the guilty plea hearing of being
      fully at herself and I thought quite keen. And so I believe she told me
      the truth at that point in time during that hearing and I deny her motion
      to set aside her guilty plea. I note the objection of the defense and save
      their exception.

      The district court then sentenced West to 64 months' imprisonment, followed
by five years of supervised release.

                                  B. Discussion
      On appeal, West argues that the district court erred in denying her motion to
withdraw her guilty plea because she presented "fair and just" reasons for the
withdrawal: health concerns and intimidation. Additionally, she asserts that she is
innocent of the underlying charge because her company authorized her to take the
money at issue.

      We review for an abuse of discretion a district court's denial of a motion to
withdraw a plea. United States v. Cruz, 643 F.3d 639, 641 (8th Cir. 2011). A
defendant is permitted to withdraw a guilty plea that the court has accepted prior to
imposition of a sentence "if 'the defendant can show a fair and just reason for

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requesting the withdrawal.'" Id. at 641–42 (quoting Fed. R. Crim. P. 11(d)(2)(B)).
"The defendant bears the burden to establish fair and just grounds for withdrawal."
Id. at 642. But even if the defendant satisfies this burden, "the court must consider
other factors before granting the motion, namely, 'whether the defendant asserts his
innocence of the charge, the length of time between the guilty plea and the motion to
withdraw it, and whether the government will be prejudiced if the court grants the
motion.'" Id. (quoting United States v. Ramirez-Hernandez, 449 F.3d 824, 826 (8th
Cir. 2006)).

       Here, West asserts that the district court should have permitted her to withdraw
her guilty plea because, inter alia, she is innocent of the charges. But West has
"presented no convincing evidence to establish that h[er] prior admissions of guilt
were untrue." Id. at 643. "A conclusory assertion of innocence 'simply does not satisfy
h[er] burden of showing a fair and just reason for permit[ting] a withdrawal of what
[she] had solemnly made under oath.'" Id. (quoting United States v. Sampson, 606
F.3d 505, 508 (8th Cir. 2010) (first and third alterations added).

       West also claims that her "health concerns and muddled thinking g[ave] the
court the discretion to find a fair and just reason." "The district court's refusal to
accept this contention is amply supported by the record." Id. at 642. At no time during
the change-of-plea hearing did West state that her medical condition or health
affected or influenced her decision to plead guilty in response to the district court's
questioning. In fact, West testified that, although she was taking prescription
medication, it was "nothing that'll affect my thinking." According to West, her "mind
[was] real clear" and she was "fully at [herself]." Additionally, West's attorney
confirmed his belief that West "[was] competent to proceed."

       Finally, West maintains that she was threatened and intimidated into pleading
guilty. Specifically, she testified at sentencing that she and her family "had been
threatened by [her] ex-employers, their family, we had been run off the road, we had

                                          -5-
been—they tried to rear-end me in a drive-thru, they had made several comments to
me when I worked there." She also testified that "[her boss] had told me one time that
if he told me something, then he'd have to kill me." (Emphasis added.) But West
"never mentioned threats and coercion before the sentencing hearing." United States
v. Kemp, 977 F.2d 586, 1992 WL 245842, at *1 (8th Cir. 1992) (unpublished per
curiam). Furthermore, West testified at the change-of-plea hearing that she was not
threatened or coerced into pleading guilty. The district court concluded that West was
telling the truth at the change-of-plea hearing and not at the sentencing hearing. "[A]
district court's credibility determinations are virtually unassailable on appeal." United
States v. Hall, 497 F.3d 846, 852 (8th Cir. 2007) (quotation and citation omitted).

      On these facts, we hold that the district court did not abuse its discretion in
denying West's motion to withdraw her guilty plea.

                                 C. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




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