                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-2997
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Northern District of Iowa.
Tony Eugene Goodson,                     *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: February 10, 2009
                                  Filed: June 22, 2009
                                   ___________

Before LOKEN, Chief Judge, MELLOY and BENTON, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

        Tony Goodson pleaded guilty to conspiring to distribute fifty or more grams of
crack cocaine after two prior felony drug convictions. The district court1 found that
the prior convictions were for separate offenses, resulting in a mandatory sentence of
life in prison under 21 U.S.C. § 841(b)(1)(A). Goodson appeals the court’s denial of
his pre-sentence motion to withdraw the guilty plea. We affirm.


      1
        The HONORABLE LINDA R. READE, Chief Judge of the United States
District Court for the Northern District of Iowa, adopting the Report and
Recommendations of the HONORABLE JON S. SCOLES, United States Magistrate
Judge for the Northern District of Iowa.
                                           I.

       Goodson was indicted following a police-monitored drug transaction on March
6, 2007. Michael Gates had asked Goodson to obtain two ounces of crack cocaine for
Gates’s customer, who was in fact a confidential informant. Goodson contacted
Maurice Moore, who provided the crack cocaine. Goodson left it for Gates at an
interstate travel plaza, and Gates delivered it to the informant. After the transaction,
Goodson admitted to investigators that Gates asked him to obtain two ounces of crack
cocaine, and that he called Moore to obtain the illegal drugs.

      On the eve of trial, Goodson signed a lengthy plea agreement proposed by the
government some months earlier. Paragraph 1 of the agreement provided that
Goodson would plead guilty to the charge that he has two felony drug convictions and
conspired to distribute fifty grams or more of crack cocaine, and that he understood
the maximum penalty for this offense is mandatory life in prison without the
possibility of parole. The government agreed to dismiss two other counts of the
indictment. In the agreement’s lengthy Stipulation of Facts, Goodson agreed that he
and others conspired to distribute fifty grams or more of crack cocaine between
January and March 2007; that he agreed to help Gates find two ounces of crack
cocaine on March 6 and obtained from Moore a substance that was lab tested and
found to be 53.5 grams of crack cocaine; that Gates purchased one ounce of crack
cocaine from Goodson on at least four other occasions; that Moore sold Goodson five
ounces of crack cocaine on five different occasions; and that Goodson was previously
convicted of the two state court felony drug offenses alleged in the indictment.

       At a change-of-plea hearing that same day, Goodson questioned whether the
conspiracy involved fifty grams or more but then acknowledged that the agreement
referred to a lab test that weighed the March 6 substance at 53.5 grams. Goodson also
questioned whether he had two prior felony drug convictions because he only recalled
one arrest. The prosecutor stated, and defense counsel confirmed, that state court

                                          -2-
records show separate charges for cocaine offenses in 1990 and 1992 resulting in two
convictions and concurrent sentences on September 22, 1993. Goodson then admitted
he had two prior felony drug convictions. The magistrate judge filed a Report and
Recommendation that the guilty plea be accepted. The district court adopted the
Report and Recommendation, to which Goodson did not object.

       Five weeks later, Goodson filed a pro se motion to withdraw his guilty plea.
The court appointed new counsel who filed a supplemental motion asserting that
Goodson “did not enter a knowing and voluntary plea of guilty and that he is innocent
in that he did not conspire to distribute over 50 grams of cocaine base nor does he
have two separate drug felonies.” After a hearing at which Goodson testified, the
magistrate judge recommended that the motion be denied. Goodson filed an objection
to that recommendation “limited to the finding . . . that [Goodson] has two or more
prior felony drug convictions.”          Counsel argued that “the Report and
Recommendation does not relieve the government from having to prove in a separate
court proceeding that [Goodson] has two prior drug felonies.”

        In an Order denying the motion to withdraw, the district court construed the
objection as “amount[ing] to an assertion that [Goodson] is innocent.” The court
noted that Goodson admitted two prior felony drug convictions at the plea hearing,
providing a sufficient factual basis for the plea. As he produced no evidence to
undermine the prior finding of two prior felony drug convictions, the court concluded
that his unsupported assertion of innocence did not constitute a fair and just reason to
withdraw the plea. At the subsequent sentencing hearing, the court determined that
Goodson’s September 1993 state court drug convictions constituted two separate
felony drug convictions for purposes of 21 U.S.C.§ 841(b)(1)(A) and sentenced him
to life in prison.




                                          -3-
                                          II.

       After a guilty plea is accepted but before sentencing, a defendant may withdraw
the plea if he establishes “a fair and just reason for requesting the withdrawal.” Fed.
R. Crim. P. 11(d)(2)(B). “When a defendant has entered a knowing and voluntary
plea of guilty at a hearing at which he acknowledged committing the crime, the
occasion for setting aside a guilty plea should seldom arise.” United States v.
Morrison, 967 F.2d 264, 268 (8th Cir. 1992) (quotation omitted). In such cases, the
court considers “whether the defendant has established a fair and just reason to
withdraw the plea,” and if so, “whether the defendant asserts his legal innocence of
the charge, the length of time between the plea and the motion to withdraw, and
whether the government will be prejudiced by the withdrawal.” United States v.
Green, 521 F.3d 929, 931 (8th Cir. 2008) (quotation omitted). We review de novo
whether the plea was knowing and voluntary; we review the court's decision to deny
the motion to withdraw for abuse of discretion. Id. at 931.

       On appeal, Goodson argues that, at the plea hearing, he disputed whether the
conspiracy involved more than fifty grams of crack cocaine and whether he had two
prior felony drug convictions, the resulting discussion between counsel and the court
was confusing and intimidating, his attorney pressured him into signing the plea
agreement, and therefore his plea was not knowing and voluntary and the district court
erred in accepting the “equivocal” plea. Goodson made this argument to the
magistrate judge at the withdrawal motion hearing. The magistrate judge rejected the
argument in a lengthy Report and Recommendation, finding after review of the plea
agreement, the plea hearing transcript, and Goodson’s testimony at the withdrawal
hearing that Goodson’s plea was knowing and voluntary, there was a factual basis for
the plea, he “has no claim to innocence,” and therefore he presented no fair and just
reason to withdraw the plea.




                                         -4-
       Goodson did not make this argument in his objection to the Report and
Recommendation. Thus, the issue is forfeited, subject only to plain error review under
Rule 52(b) of the Federal Rules of Criminal Procedure. See United States v. Maxwell,
498 F.3d 799, 801 n.2 (8th Cir. 2007). As we review de novo whether a plea was
knowing and voluntary, this issue is subject to plain error review. But here, it is
without merit. At the plea hearing, Goodson was fully advised of the maximum
sentence he faced if the plea was accepted and the rights he would waive by pleading
guilty. He answered “Nope” when asked if anyone “forced [him] to plead guilty or
made any promises to get [him] to plead guilty.” He answered “Yeah” when asked
if he was satisfied with the representation he received from his attorney. Goodson’s
“self-serving, post-plea claims that he was . . . unable to voluntarily choose to plead
guilty fly directly in the face of his own plea hearing testimony.” Green, 521 F.3d at
932 (quotation omitted). The district court’s determination that the plea was knowing
and voluntary was not error, much less plain error. See, e.g., United States v.
Enriquez, 205 F.3d 345, 348 (8th Cir.), cert. denied, 531 U.S. 890 (2000); United
States v. Jones, 111 F.3d 597, 602 (8th Cir. 1997).

        We review for abuse of discretion whether Goodson established a fair and just
reason to withdraw his plea. There can be no abuse of discretion in failing to consider
a reason not urged, so our review of this issue is limited to the objection Goodson
made to the magistrate judge’s Report and Recommendation, namely, “the finding .
. . that [Goodson] has two or more prior felony convictions.”2 It was undisputed (by
defense counsel at the withdrawal hearing, and by Goodson at the plea hearing) that

      2
        On the drug quantity issue now urged on appeal, Goodson repeatedly admitted
that the conspiracy included “obtaining two ounces of crack cocaine” for the March
6, 2007, transaction. Two ounces equals 56.7 grams. See U.S.S.G. § 2D1.1,
comment. (n. 10(E)). Thus, even putting aside the lab report that the substance
contained 53.5 grams of crack cocaine, and his admissions in the plea agreement of
substantial other transactions with Gates and Moore, Goodson’s belated doubt about
whether the conspiracy involved fifty or more grams of crack cocaine is frivolous.


                                         -5-
the state court imposed two separate drug felony convictions with concurrent
sentences on September 22, 1993. The objection was made to ensure that the
government retained the burden to prove at sentencing that these were separate
convictions for purposes of determining whether to impose a mandatory life sentence
under 21 U.S.C. § 841(b)(1)(A). The district court at sentencing effectively granted
the relief Goodson requested in his objection by placing on the government the burden
to prove the two convictions were not part of the same criminal episode.3 The court
correctly noted that Goodson’s “mere assertion of innocence” did not provide a
sufficient evidentiary basis for withdrawing the plea, citing United States v. Ludwig,
972 F.2d 948, 951 (8th Cir. 1992). In these circumstances, the court did not abuse its
discretion in concluding that Goodson failed to show a fair and just reason to
withdraw his guilty plea.

      The judgment of the district court is affirmed.
                     ______________________________




      3
       Goodson does not appeal the court’s resolution of that issue. See generally
United States v. Hawkins, 548 F.3d 1143, 1149-50 (8th Cir. 2008).

                                         -6-
