UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 95-5592

VICTOR MANUEL VALE,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge.
(CR-95-23)

Submitted: October 8, 1996

Decided: November 18, 1996

Before HALL, MURNAGHAN, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William T. Harville, Norfolk, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, Fernando Groene, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

On the morning of his trial, Victor Manuel Vale decided to plead
guilty under a plea agreement to one count of attempted possession
with intent to distribute in excess of 500 grams of cocaine in violation
of 21 U.S.C. §§ 841(a)(1), 846 (1994). The district court conducted
a thorough Fed. R. Civ. P. 11 colloquy and determined that Vale
knowingly and voluntarily pled guilty to the crime. The court care-
fully reviewed the contents of the plea agreement with Vale. Three
months later at his sentencing hearing, Vale moved to withdraw his
guilty plea, alleging that he had been coerced into pleading guilty
because the Government threatened to reindict him and the mother of
his daughter if he did not plead guilty. The district court denied his
motion and sentenced him. Vale alleges on appeal that the district
court erred by denying his motion without conducting an evidentiary
hearing. The Government moved to dismiss the appeal. We deny the
motion to dismiss and affirm the district court's denial of Vale's
motion to withdraw his guilty plea.

The Government's motion to dismiss is based on Vale's waiver of
his right to appeal any sentence imposed by the district court, as set
forth in his plea agreement. Because Vale only appeals the district
court's order denying his motion to withdraw his guilty plea under
Fed. R. Crim. P. 32(d), however, we deny the Government's motion
to dismiss.

We review a district court's refusal to allow a defendant to with-
draw a guilty plea for an abuse of discretion. United States v. Puckett,
61 F.3d 1092, 1099 (4th Cir. 1995). A defendant does not have an
absolute right to withdraw a guilty plea. United States v. Ewing, 957
F.2d 115, 119 (4th Cir.), cert. denied, 505 U.S. 1210 (1992). Rather,
the defendant must present a "fair and just reason" for the withdrawal.
Fed. R. Crim. P. 32(e). A "fair and just reason" is one that "essentially
challenges . . . the fairness of the Rule 11 proceeding." United States
v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (in banc), cert.
denied, ___ U.S. ___, 63 U.S.L.W. 3460 (U.S. Dec. 12, 1994) (No.
94-6055). An appropriately conducted Rule 11 proceeding raises a
strong presumption that the guilty plea is final and binding. Id.

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We consider several factors in determining whether a defendant
may withdraw a guilty plea: (1) whether there was a delay between
the entry of the plea and the filing of the motion; (2) whether the
defendant was assisted by competent counsel; (3) whether the defen-
dant credibly asserted his legal innocence; (4) whether the defendant
offered credible evidence that his plea was not knowing or voluntary;
(5) whether the withdrawal will prejudice the government; and (6)
whether the withdrawal will inconvenience the court and waste judi-
cial resources. United States v. Moore, 931 F.2d 245, 248 (4th Cir.),
cert. denied, 502 U.S. 857 (1991). The defendant carries the burden
of establishing a fair and just reason for withdrawal, even if the gov-
ernment has not shown prejudice. Lambey, 974 F.2d at 1393-94.

Consideration of these factors weighs against Vale. First, over
three months elapsed between the time he entered his plea and the
time he moved to withdraw the plea. See United States v. Craig, 985
F.2d 175, 178 (4th Cir. 1993) (holding that eight weeks between
guilty plea and motion militates against withdrawal). Second, Vale
does not assert that he had incompetent counsel. Third, Vale never
credibly asserted his legal innocence in the face of voluminous,
uncontested, and credible evidence to the contrary. See generally
United States v. Haley, 784 F.2d 1218, 1219 (4th Cir. 1986). Fourth,
Vale failed to offer credible evidence that his plea was not knowing
and voluntary. The district court fully complied with the requirements
of Rule 11 and specifically asked Vale whether he had been coerced
or threatened into pleading guilty. Vale answered that he had not. As
this court stated in Lambey, an "appropriately conducted Rule 11 pro-
ceeding . . . raise[s] a strong presumption that the plea is final and
binding." 974 F.2d at 1394. Fifth, granting Vale's motion would prej-
udice the Government because Vale did not plead until the morning
of trial, and twelve of the Government's fifteen witnesses were from
outside the court's district and one witness was scheduled to be trans-
ferred to Buenos Aires, Argentina, a week after trial. Finally, the dis-
trict court viewed the motion to withdraw the plea as an attempt to
manipulate the court. Accordingly, we find that Vale has failed to
meet his burden of showing a fair and just reason to permit with-
drawal of his plea under Fed. R. Civ. P. 32(d).

That the district court failed to conduct an evidentiary hearing to
determine the factual basis of Vale's plea does not alter this result.

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Vale never requested such a hearing, and a defendant does not auto-
matically get an evidentiary hearing as a matter of right when he
seeks to withdraw a guilty plea. Moore, 931 F.2d at 248. Although
"`evidentiary hearings should be liberally granted prior to sentenc-
ing,'" the hearing need only be granted when a"`fair and just reason'
for withdrawal is presented." Id. (quoting United States v. Fountain,
777 F.2d 351, 358 (7th Cir. 1985), cert. denied , 475 U.S. 1029
(1986)). Vale has failed to make such a showing and therefore we
affirm the district court's denial of the motion.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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