UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

GEROLD LEE DAVIS, a/k/a Jerry G.
                                                                          No. 94-5427
Davies, a/k/a Arnold Lietzey, a/k/a
Gerold L. Davis, a/k/a John Reid,
a/k/a Jerry Davies, a/k/a Gerald K.
Davis,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Greenwood.
G. Ross Anderson, Jr., District Judge.
(CR-93-429)

Submitted: January 9, 1996

Decided: June 24, 1996

Before NIEMEYER and HAMILTON, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Parks N. Small, Federal Public Defender, Columbia, South Carolina,
for Appellant. J. Preston Strom, Jr., United States Attorney, Marvin J.
Caughman, Assistant United States Attorney, Columbia, South Caro-
lina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Gerold Lee Davis appeals from his conviction for conspiring to
possess with the intent to distribute cocaine and cocaine base in viola-
tion of 21 U.S.C.A. §§ 841, 846 (West 1981 & Supp. 1995). He pled
guilty pursuant to a plea agreement. In exchange for the guilty plea,
the Government agreed to a sentencing cap of fifteen years if Davis
provided substantial assistance to the Government. At his sentencing
hearing, Davis moved to withdraw his guilty plea and to compel per-
formance of the plea agreement by the Government. The district court
denied Davis's withdrawal motion because it found no proof that
Davis did not fully understand the plea. The sentencing hearing was
continued to a later date, when the district court considered Davis's
renewed motion to withdraw his guilty plea. The district court again
denied the withdrawal motion. Upon the Government's motion, the
court sentenced Davis to 180 months imprisonment and five years of
supervised release.

On appeal, Davis claims that the district court violated Fed. R.
Crim. P. 11 by failing to inform him of the applicable mandatory
minimum sentence and inquire whether his guilty plea was induced
by force or threats. He further claims that the district court abused its
discretion by denying his motion to withdraw his guilty plea. We
affirm.

Davis's claims are premised on his allegation that the district court
violated his substantial rights by failing to comply with Rule 11 dur-
ing his plea hearing. Davis neither contends that he was not compe-
tent to enter a guilty plea, nor does the record reveal any
incompetency. At the Rule 11 hearing the court described to Davis,
in detail, the elements of the crimes charged against him. Davis
attested that he understood the maximum sentence he could receive
for his conviction. The court inquired about Davis's understanding of

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the sentencing guidelines, the plea agreement, and his waiver of his
rights and privileges accorded an accused by a jury trial. Davis denied
that anyone promised him anything in order to induce him to plead
guilty, other than that which was set forth in the plea agreement.
Davis testified that he had ample opportunity to discuss the case with
his attorney, he was satisfied with the services of his attorney, and his
attorney had done everything Davis had asked him to do. Davis also
agreed with the Government's summary of the facts and admitted his
illegal actions as set forth in that summary. Before the court accepted
Davis's guilty plea, it found that Davis was "voluntarily, intelligently
and understandingly" pleading guilty. Davis cannot now disavow the
statements he made at the plea hearing. See United States v. DeFusco,
949 F.2d 114, 119 (4th Cir. 1991), cert. denied , 503 U.S. 997 (1992);
Via v. Superintendent, Powhatan Correctional Ctr. , 643 F.2d 167,
171 (4th Cir. 1981).

Davis first claims that the district court violated his rights by fail-
ing to inform him of the mandatory minimum sentence applicable to
his sentence.1 The adequacy of a guilty plea is generally reviewed de
novo, United States v. Good, 25 F.3d 218, 219 (4th Cir. 1994), but
Fed. R. Crim. P. 11 violations are evaluated under a harmless error
standard. Fed. R. Crim. P. 11(h); DeFusco, 949 F.2d at 117.

The record reveals that Davis was actually aware of the mandatory
minimum sentence when he pled guilty. Neither Davis's plea agree-
ment nor his plea hearing mention a mandatory minimum sentence.
However, Davis was served with an initial indictment and two super-
seding indictments. Each indictment accompanied a penalty sheet
which showed the various applicable sentences for violations of 28
U.S.C.A. § 841, including the mandatory minimum sentence, depend-
ing on the drug amounts involved in the offense. Furthermore, his
presentence report clearly stated that for his offense and the amount
of drugs involved in the offense, the minimum term of imprisonment
is ten years and the maximum term is life imprisonment pursuant to
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1 Because Davis conspired to possess cocaine and cocaine base with the
intent to distribute, he was subject to the same penalties as those pro-
scribed for a violation of § 841. See§ 846. The applicable mandatory
minimum sentences for violations of § 841, depending on the amount of
drugs involved in the offense, are set out in § 841(b).

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§ 841(b)(1)(A). From the beginning of the sentencing hearing, at the
very latest, Davis was on notice that he was subject to a minimum
sentence of ten years imprisonment. Yet, he made no objection or
attempt to withdraw his guilty plea on the ground that he was not
informed of the applicable mandatory minimum sentence.2

Davis was sentenced to 180 months imprisonment and five years
of supervised release. Davis did not express any surprise at his fifteen
year sentence, or otherwise indicate that he was under the mistaken
belief he would receive a sentence of less than ten years. Hence, we
find that Davis was aware of the applicable mandatory sentence when
he pled guilty. United States v. Goins, 51 F.3d 400, 402 (4th Cir.
1995). It follows that Davis would not have gained any new informa-
tion had the district court informed him of the mandatory minimum
sentence during his plea hearing. Id.

We also find that knowledge of the mandatory minimum sentence
of ten years imprisonment would not have affected Davis's decision
to plead guilty. Id. The plea agreement notified Davis that he faced
a maximum penalty of life imprisonment. As noted above, his guide-
line range subjected him to life imprisonment. We refuse to accept
that he pled guilty because he mistakenly believed that he would
receive less than ten years imprisonment. Therefore, the district
court's Rule 11 violation was harmless error because the violation did
not affect Davis's substantial rights. DeFusco , 949 F.2d at 117.

Next, Davis claims that the district court violated Fed. R. Crim. P.
11(d) by failing to inquire whether Davis was induced into pleading
guilty by force or threats. Rule 11(d) requires the court to address the
defendant personally to determine that the guilty plea is voluntary and
is not the result of any promises apart from the plea agreement, and
to inquire whether the plea is a result of discussions with the prosecu-
tor. DeFusco, 949 F.2d at 119. A guilty plea must be voluntary, i.e.,
it must be a "voluntary and intelligent choice among the alternative
courses of action open to the defendant." North Carolina v. Alford,
400 U.S. 25, 31 (1970).
_________________________________________________________________
2 Although Davis twice moved to withdraw his guilty plea before sen-
tencing, his motions were not based on a claim that he was not informed
of the applicable mandatory minimum sentence.

                    4
The Government concedes that during the plea hearing the district
court did not use the terms "threats" or "force" while evaluating
Davis's voluntariness to plead guilty. Compliance with Rule 11, how-
ever, is evaluated under a harmless error standard. DeFusco, 949 F.2d
at 117. Only a violation which affects a defendant's substantial rights
necessitates vacation of a conviction pursuant to a plea. Id.

Nothing in the record suggests that Davis was improperly induced
into pleading guilty. Moreover, Davis does not allege or offer any evi-
dence showing that he was induced into pleading guilty by force or
threats. Thus, the district court's failure to specifically inquire
whether Davis was induced into pleading guilty by force or threats
was harmless error because the violation did not affect Davis's sub-
stantial rights. Id.

Davis also claims that the district court abused its discretion by
failing to find a fair and just reason for denying his motion to with-
draw his guilty plea. Before his sentencing, Davis moved to withdraw
his guilty plea because he claimed that he didn't know or understand
that he was "giving up [his] right to habeas corpus" and "the afforda-
bility factor." When questioned further about the grounds for the
motion, Davis explained that he received information from a legal
service "about the affordability factor, the amount of drugs I would
be charged with. You know, if people said I had a certain amount of
drugs and I didn't have that amount of drugs, whatever they said."

A defendant does not have an absolute right to withdraw a guilty
plea. United States v. Moore, 931 F.2d 245, 248 (4th Cir.), cert.
denied, 502 U.S. 857 (1991). If a motion to withdraw a guilty plea is
made before sentencing, however, a district court may grant the
motion upon a showing of any fair and just reason. Fed. R. Crim. P.
32(d). This court reviews the denial of a motion to withdraw a guilty
plea for abuse of discretion. United States v. Puckett, 61 F.3d 1092,
1099 (4th Cir. 1995). The district court's factual findings in support
of its denial will not be overturned unless they are clearly erroneous.
United States v. Suter, 755 F.2d 523, 525 (7th Cir.), cert. denied, 471
U.S. 1103 (1985).

Consideration of the relevant factors weigh against Davis. First, as
discussed above, Davis has not shown that his guilty plea was entered

                    5
unknowingly or involuntarily. Moore, 931 F.2d at 248. Second, Davis
has never alleged that he is innocent of the charge to which he pled
guilty. Id. Third, Davis moved to withdraw his guilty plea approxi-
mately nine months after his guilty plea hearing. Id. Fourth, there is
no evidence that Davis's counsel rendered ineffective assistance of
counsel. Id. In denying Davis's withdrawal motion, the court noted
that Davis discussed the case, including possible defenses, with his
attorney and he understood the charges against him. The court found
that Davis was satisfied with the services of his attorney and he
understood the possible maximum penalty. The court further found
that Davis had a competent attorney to advise him throughout the
case. Davis has not shown that these findings are clearly erroneous.
Suter, 755 F.2d at 525. Fifth, there would have been substantial preju-
dice to the Government had the court granted Davis's motion. Moore,
931 F.2d at 248. The Government had present approximately thirty-
five witnesses--some from as far away as California--who were
ready to testify at trial. Finally, granting Davis's motion would have
inconvenienced the court and wasted judicial resources. Id. Before
Davis entered his guilty plea, the court had drawn a jury and set aside
approximately two weeks for Davis's trial.

Because any Rule 11 violation the district court may have commit-
ted at Davis's plea hearing was harmless error, the court did not abuse
its discretion in denying Davis's subsequent motion to withdraw his
guilty plea. Puckett, 61 F.3d at 1099.

Accordingly, we affirm Davis's conviction. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.

AFFIRMED

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