                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4975


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

LARRY CHEESE,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     William D. Quarles, Jr., District
Judge. (1:08-cr-00415-WDQ-4)


Submitted:   December 30, 2010             Decided:   February 17, 2011


Before MOTZ and    SHEDD,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Marc Gregory Hall, HALL & CHO, P.C., Rockville, Maryland, for
Appellant.    Christopher M. Mason, Special Assistant United
States Attorney, James Thomas Wallner, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Pursuant to a plea agreement, Larry Cheese pled guilty

to   conspiracy           to     distribute              and     possess    with       intent   to

distribute one kilogram or more of heroin, in violation of 21

U.S.C. § 846 (2006).                 The district court sentenced Cheese to 292

months’    imprisonment,              the   bottom         of     the   advisory       guidelines

range.    Cheese timely appealed.

               Counsel         has    filed      a       brief     pursuant       to   Anders    v.

California, 386 U.S. 738 (1967), finding no meritorious grounds

for appeal but questioning whether the district court erred by

denying    Cheese’s            motion       to     withdraw         his     guilty      plea    and

challenging the reasonableness of Cheese’s sentence.                                   Cheese was

advised of his right to submit a pro se supplemental brief, but

he did not file one.

               At   the    beginning          of     his       sentencing     hearing,     Cheese

made a pro se motion to withdraw his guilty plea, which the

district court denied.                We review the district court’s denial of

a motion to withdraw a guilty plea for abuse of discretion.

United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).

“[A] defendant does not have an absolute right to withdraw a

guilty plea, even before sentencing.”                              United States v. Moore,

931 F.2d 245, 248 (4th Cir. 1991).                             Instead, he must show that a

“fair    and    just      reason”       supports          his     request    to    withdraw     his

plea.    Id.

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            “[A]     ‘fair    and     just’      reason   .   .    .   is   one    that

essentially challenges . . . the fairness of the [Fed. R. Crim.

P.] 11 proceeding.”           United States v. Lambey, 974 F.2d 1389,

1394 (4th Cir. 1992) (en banc).                   In this case, the district

court substantially complied with the requirements of Rule 11 in

accepting    Cheese’s        guilty      plea.      Accordingly,       Cheese      must

overcome a strong presumption that his guilty plea is final and

binding.    Id.

            In determining whether Cheese has carried his burden,

we consider six factors:

     (1)   whether  the  defendant   has  offered  credible
     evidence that his plea was not knowing or not
     voluntary, (2) whether the defendant has credibly
     asserted his legal innocence, (3) whether there has
     been a delay between the entering of the plea and the
     filing of the motion, (4) whether the defendant has
     had close assistance of competent counsel, (5) whether
     withdrawal will cause prejudice to the government, and
     (6) whether it will inconvenience the court and waste
     judicial resources.

Moore, 931 F.2d at 248.             This court has stated that the first,

second, and fourth factors are the most significant, as they

“speak most straightforwardly to the question of whether the

movant has a fair and just reason to upset settled systemic

expectations” by withdrawing his guilty plea.                      United States v.

Sparks, 67 F.3d 1145, 1154 (4th Cir. 1995).

            Cheese    claimed       at    the    sentencing       hearing   that   his

guilty plea was not knowing and voluntary because his lawyer


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promised him on the day of the trial that he would receive a

twenty-one-year    sentence     if    he    pled   guilty       and   that       he    was

scared into pleading guilty when he had always wanted to proceed

to trial because he was innocent.                  However, during the plea

hearing, Cheese declared under oath that he understood that his

offense included a statutory minimum sentence of ten years and a

statutory maximum term of life in prison.                     Cheese also denied

that anyone had threatened or forced him into pleading guilty.

Finally, when the court asked him if, other than in the plea

agreement (which did not include a prediction or promise of a

particular sentence), anyone had made any promise or prediction

about what sentence he would receive, Cheese answered, “No.”

            Contrary    to    his    bald    claim       of   innocence         at     the

sentencing   hearing,    Cheese      declared      under      oath    at       the    plea

hearing that the Government’s summary of the facts establishing

his guilt was accurate and that he was pleading guilty because

he was, in fact, guilty.        These statements, made under oath, are

presumed to be true.          Blackledge v. Allison, 431 U.S. 63, 74

(1977); see Beck v. Angelone, 261 F.3d 377, 395-96 (4th Cir.

2001) (absent “clear and convincing evidence to the contrary,”

defendant is bound by statements made under oath at Rule 11

hearing).     We   conclude    that    Cheese      did    not   made       a   credible

showing that his guilty plea was not knowing and voluntary or

that he is actually innocent.          Moreover, although Cheese sought

                                       4
new counsel at his sentencing hearing, his claims regarding the

adequacy of counsel’s representation were unsubstantiated.

               Thus,   the    three     most      important      Moore    factors    weigh

against        Cheese’s      motion      to       withdraw       his      guilty    plea.

Additionally, Cheese waited until the sentencing hearing to try

to withdraw his guilty plea.                   Even if withdrawal of the plea

would not prejudice the Government or inconvenience the district

court     or      waste      judicial     resources,          these       countervailing

considerations do not constitute a “fair and just” reasons to

grant Cheese’s motion to withdraw his guilty plea.                            See Sparks,

67 F.3d at 1154 (noting that Moore factors three, five, and six

“are    better     understood     as     countervailing          considerations         that

establish how heavily the [Rule 11] presumption [of finality of

the guilty plea] should weigh in any given case.”).                           We conclude

that the district court did not abuse its discretion in denying

Cheese’s motion.

               Turning to Cheese’s sentence, we review it under a

“deferential       abuse-of-discretion             standard.”          Gall    v.   United

States, 552 U.S. 38, 41 (2007).                    In conducting this review, we

“must     first     ensure     that     the       district       court    committed       no

significant procedural error, such as failing to calculate (or

improperly       calculating)     the     [g]uidelines           range,    treating      the

[g]uidelines as mandatory, failing to consider the [18 U.S.C.]

§ 3553(a)       [(2006)]      factors,     selecting         a    sentence      based     on

                                              5
clearly erroneous facts, or failing to adequately explain the

chosen sentence.”            Id. at 51. “When rendering a sentence, the

district court must make an individualized assessment based on

the facts presented,” applying the “relevant § 3553(a) factors

to the specific circumstances of the case before it.”                                    United

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (internal

quotation     marks     and       emphasis      omitted).          The    court    must    also

“state   in    open     court       the     particular        reasons       supporting        its

chosen sentence” and “set forth enough to satisfy” this court

that   it     has    “considered          the     parties’        arguments       and   has    a

reasoned    basis     for     exercising          [its]     own     legal      decisionmaking

authority.”      Id. (internal quotation marks omitted).

              Once we have determined that the sentence is free of

procedural          error,         we      must          consider        the      substantive

reasonableness        of     the        sentence,        “tak[ing]    into       account   the

totality of the circumstances.”                      Gall, 552 U.S. at 51.              If the

sentence is within the appropriate guidelines range, this court

applies a presumption on appeal that the sentence is reasonable.

See United States v. Go, 517 F.3d 216, 218 (4th Cir. 2008).

              In this case, the district court correctly calculated

the advisory guidelines range.                         Although the court committed

procedural      error        in    failing          to    provide     an       individualized

assessment      of    Cheese’s          case,     we     conclude     that       the    court’s

omission did not affect Cheese’s substantial rights.                              See United

                                                6
States v. Lynn, 592 F.3d 572, 580 (4th Cir. 2010). Furthermore,

neither     counsel         nor    Cheese    has       articulated              any    factors    to

overcome       the   appellate       presumption            of    reasonableness             afforded

Cheese’s within-guidelines sentence.                             Accordingly, we conclude

that     the    district          court    did       not     abuse        its    discretion        in

sentencing Cheese.

               In accordance with Anders, we have reviewed the entire

record    for    any     meritorious        issues          and    have     found       none.      We

therefore       affirm      the    district       court’s          judgment.            This    court

requires that counsel inform Cheese, in writing, of the right to

petition       the   Supreme       Court    of       the    United        States       for   further

review.        If    Cheese       requests       that       a     petition       be     filed,   but

counsel believes that such a petition would be frivolous, then

counsel    may       move    in    this    court       for        leave    to     withdraw       from

representation.          Counsel’s motion must state that a copy thereof

was served on Cheese.

               We dispense with oral argument because the facts and

legal    contentions         are     adequately            presented       in     the    materials

before    the    court       and    argument         would        not   aid      the    decisional

process.

                                                                                             AFFIRMED




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