                              UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                              No. 04-4221



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

          versus


MISAEL    SANDOVAL     DELGADO,   a/k/a     Misael
Sandoval,

                                                Defendant - Appellant.



                              No. 04-4434



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

          versus


MISAEL    SANDOVAL     DELGADO,   a/k/a     Misael
Sandoval,

                                                Defendant - Appellant.



Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-01-104)


Submitted:   July 29, 2005                Decided:   September 16, 2005
Before WILKINSON, MOTZ, and KING, Circuit Judges.


No. 04-4221 dismissed; No. 04-4434 affirmed by unpublished per
curiam opinion.


Eric A. Bach, Charlotte, North Carolina, for Appellant. Gretchen
C. F. Shappert, United States Attorney, Jack M. Knight, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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




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PER CURIAM:

                Misael Sandoval Delgado pleaded guilty to conspiracy to

distribute five kilograms or more of cocaine, in violation of 21

U.S.C.      §   846     (2000)    (Count   One);    possession      with   intent   to

distribute five kilograms or more of cocaine, in violation of 21

U.S.C. § 841(a)(1) (2000); and possession of a firearm during and

in relation to a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c) (2000).          In No. 04-4434, Delgado appeals, contending that

the district court erred when it denied his motion to withdraw his

guilty plea and that his sentence violates the Sixth Amendment

because the district court, rather than a jury, made findings

regarding the amount of cocaine for which he was responsible.                       We

affirm.*



                                             I

                There    was     no   written    plea   agreement    in    this   case.

Delgado’s Fed. R. Crim. P. 11 hearing was conducted on May 22,

2002.       At the hearing, Delgado stated that he understood the



        *
      In No. 04-4221, Delgado appeals the district court’s order
denying his “Motion for Permission to File an Out-of-Time Appeal
or, in the Alternative, Motion Pursuant to 28 U.S.C. § 2255 to
Vacate Sentence.” After the district court ruled on this motion,
the court vacated the original criminal judgment, directed that a
new criminal judgment with the same sentence be filed, and ordered
counsel be appointed for Delgado to pursue a direct appeal.
Because Delgado has received the relief he sought--namely, an
opportunity to appeal from the criminal judgment--we dismiss No.
04-4221 as moot.

                                           - 3 -
charges against him, the potential sentence that he faced for each

charged offense, the applicability of the sentencing guidelines,

and the rights he was waiving by pleading guilty.        Delgado stated

that he was pleading guilty because he was in fact guilty of the

offenses charged.     He claimed to have had ample time to consult

with his attorney.

          On August 7, 2002, Delgado sent the court a letter

stating that he wanted to withdraw his guilty plea with respect to

the firearm offense.   He gave no reason for his request.     Following

a hearing, the district court denied the motion, applying the six

factors identified in United States v. Wilson, 81 F.3d 1300 (4th

Cir. 1996).

          Delgado’s    presentence   report    (psr)   assigned   a   base

offense level of 32, representing at least five, but less than

fifteen, kilograms of     cocaine.   See U.S. Sentencing Guidelines

Manual § 2D1.1 (2001).   Two levels were deducted for acceptance of

responsibility.     See USSG § 3E1.1(a).      With a resulting offense

level of 30 and a criminal history category of I, Delgado’s

guideline range was 97-121 months.      Because the statutory minimum

sentence on the drug charges was ten years, the guideline range

became 120-121 months, to be followed by a mandatory consecutive

sentence for the firearm conviction of not less than five years.

There were no objections to the psr that affected the term of

imprisonment.     The district court adopted the psr and sentenced


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Delgado to 120 months on the drug offenses, to run concurrently,

and sixty months consecutive on the firearms offense.



                                    II

            Delgado claims that the district court erred when it

denied his motion to withdraw his guilty plea.                We review the

district court’s decision for abuse of discretion. Wilson, 81 F.3d

at 1305.

            A defendant seeking to withdraw a guilty plea prior to

sentencing    must   demonstrate    a    “fair   and   just    reason”   for

withdrawal.    See Fed. R. Crim. P. 11(d)(2)(b); United States v.

Bowman, 348 F.3d 408, 413 (4th Cir. 2003), cert. denied, 540 U.S.

126 (2004).   In determining whether a fair and just reason exists,

the most important question is whether the Rule 11 hearing was

properly conducted, and the plea counseled and voluntary.            Id. at

413-14.    Other factors that may bear on whether withdrawal should

be allowed include:

     (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 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.

United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).




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            Here,   the   transcript        of   the     Rule     11   proceeding

demonstrates compliance with the Rule and supports the district

court’s finding that Delgado’s guilty plea was counseled, knowing,

and voluntary. There was no credible assertion of legal innocence.

The delay of two and one-half months between the plea and Delgado’s

letter to the court weighs against permitting withdrawal.                 Nothing

in the record suggests that Delgado’s attorney was incompetent;

indeed,   Delgado   professed   his    satisfaction        with    his   lawyer’s

services.   Finally, Delgado entered his plea the morning his trial

was scheduled to begin; jury selection was completed at 7:30 p.m.

the previous evening.     Allowing withdrawal of the plea would have

prejudiced the United States, which had spent significant time

preparing for trial, and inconvenienced the court, which had

already expended considerable time and resources on the case.

Therefore, the district court did not abuse its discretion in

denying the motion.



                                      III

            Although the district court rather than a jury determined

the amount of cocaine for which Delgado was held responsible at

sentencing, we conclude that Delgado’s sentence does not violate

the Sixth Amendment under United States v. Booker, 125 S. Ct. 738

(2005), and Blakely v. Washington, 542 U.S. 296 (2004).                     Quite

simply,   Delgado   admitted    at    the    Rule   11    proceeding     that   he


                                     - 6 -
conspired to distribute and possessed with intent to distribute

more than five kilograms of cocaine.   He accordingly was assigned

a base offense level of 32 at sentencing, representing at least

five, but less than fifteen, kilograms of cocaine.         See U.S.

Sentencing Guidelines Manual § 2D1.1 (2001).

          In Booker, the Court held that enhancing sentences based

on facts found by the court alone and not by the jury violated the

Sixth Amendment imperative that “[a]ny fact (other than a prior

conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty or

a jury verdict must be admitted by the defendant or proved to a

jury beyond a reasonable doubt.”    United States v. Booker, 125 S.

Ct. at 756 (citing Apprendi v. New Jersey, 530 U.S. 466, 490

(2000)). Because Delgado admitted that he was responsible for five

kilograms of cocaine, there was no Sixth Amendment violation.



                               IV

          We accordingly affirm No. 04-4434. 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.



                                               No. 04-4221 DISMISSED
                                                No. 04-4434 AFFIRMED



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