                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAR 26 2003
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,
                                                        No. 02-1360
          Plaintiff-Appellee,                     (D.C. No. 01-CR-250-N)
                                                         (D. Colo.)
 v.

 DARRYLE ANTHONY JOLLEY,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, McKAY and ANDERSON, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.

      An indictment charged Mr. Jolley with four counts of distributing a

controlled substance and two counts of being a felon in possession of a gun. On


      *
       This order and judgment is not binding precedent, except under the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.
December 7, 2001, Defendant pled guilty to one count of violating the Armed

Career Criminal Act by possessing a firearm subsequent to three previous

convictions for a violent felony or serious drug offense. 18 U.S.C. § 924(e)(1).

The Government agreed to dismiss the remaining five counts of the indictment at

sentencing. At the time of the plea, Defendant was represented by counsel.

      On March 13, 2002, two days before the scheduled sentencing hearing,

Defendant filed a motion to withdraw his guilty plea pursuant to Federal Rule of

Criminal Procedure 32(e), arguing that new evidence had come to his attention

that would support an argument that his confession was procured through false

promises of leniency. He further claimed that after he entered into the plea

agreement he learned that a witness to the promises had been intimidated to

remain silent by one of the agents. He stated that “his decision with regard to his

plea would be different” in light of this information. Rec., Vol. 6, at 9. The

district court held a hearing at which Defendant was permitted to testify and to

produce evidence supporting his claims. Following the hearing, the district court

denied Defendant’s motion and sentenced him to serve 235 months in prison.

Defendant appeals to this court.

      On appeal, Defendant claims that the district court erred in denying his

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

motion to withdraw a guilty plea for an abuse of discretion. Barker v. United


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States, 579 F.2d 1219, 1223 (10th Cir. 1978). A defendant does not have an

absolute right to withdraw his guilty plea prior to sentencing. Fed. R. Crim. P.

32(e); see also Mabry v. Johnson, 467 U.S. 504, 508-09 (1984). The defendant

has the burden of proving a “fair and just reason” to withdraw his guilty plea

pursuant to Rule 32(e). United States v. Burger, 964 F.2d 1065, 1070-71 (10th

Cir. 1992) (citation omitted).

      We have articulated seven factors to be considered in our determination of

whether a defendant has met the burden of establishing “a fair and just reason”

for withdrawing his guilty plea. United States v. Black, 201 F.3d 1296, 1299-

1300 (10th Cir. 2000); see also United States v. Gordon, 4 F.3d 1567, 1572 (10th

Cir. 1993). These factors are:

      (1) whether the defendant has asserted his innocence; (2) whether the
      government will be prejudiced if the motion is granted; (3) whether the
      defendant has delayed in filing the motion; (4) the inconvenience to the
      court if the motion is granted; (5) the quality of the defendant’s assistance
      of counsel; (6) whether the plea was knowing and voluntary; (7) whether
      the granting of the motion would cause a waste of judicial resources.

Black, 201 F.3d at 1299-1300 (10th Cir. 2000).

      Defendant’s argument that the district court failed to consider his legal

innocence is unsupported by the record. The district court considered

Defendant’s allegation that information came to his attention after he entered his

plea that might have assisted him in suppressing his confession. Our review of

the record reveals that the district court granted Defendant a hearing to establish

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this evidence, considered all of the evidence, and rejected Defendant’s argument

on the merits. After the hearing, the district court determined that Defendant was

unable to demonstrate that evidence existed in support of his claim that the

Government falsely promised leniency. Specifically, the witness to the alleged

unfilled promises indicated at the hearing that she would invoke the Fifth

Amendment if called to testify. Additionally, Defendant never asserted his

innocence. He was represented by counsel when he entered into the plea

agreement and he entered into the plea agreement freely and voluntarily. We

cannot find fault with the district court’s analysis of the other factors.

      Therefore, in light of the Gordon factors and the facts of the instant case,

we hold that the district court did not abuse its discretion in denying Defendant’s

motion to withdraw his guilty plea.

      The conviction and sentence are AFFIRMED.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge




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