UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

LAMONT DAVIS, a/k/a Lamont
                                                                     No. 98-4612
Spencer, a/k/a Leon Davis, a/k/a
Texas, a/k/a Lamont Simpson, a/k/a
Carl Davis,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
Norman K. Moon, District Judge.
(CR-97-24-H)

Submitted: January 26, 1999

Decided: February 16, 1999

Before WILKINS, LUTTIG, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Roland M. Santos, Harrisonburg, Virginia, for Appellant. Robert P.
Crouch, Jr., United States Attorney, Joseph W. H. Mott, Assistant
United States Attorney, Michael Resch, Third Year Law Intern, Roa-
noke, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Lamont Davis appeals from the district court's judgment order
entered pursuant to his plea of guilty to one count of conspiring to
distribute cocaine. Seven codefendants pled guilty before the sched-
uled trial date, and on January 12, 1998, trial began for Davis and two
additional codefendants. On the third day of trial, however, Davis
pled guilty. The district court conducted a plea colloquy pursuant to
Federal Rule of Criminal Procedure 11(c), to ensure that the plea was
knowing and voluntary. The court advised Davis of various rights
associated with his right to a trial, such as his right to testify or not
testify, to confront and cross-examine witnesses, and inquired
whether Davis understood these rights. Most crucial to this case, the
court also asked Davis whether he understood that he had "a right to
continue with this jury trial," and that if he pled guilty, the jury "will
be discharged insofar as your case is concerned."

Davis answered all these questions affirmatively, and the district
court accepted his plea. On May 28, 1998, Davis wrote a letter to the
court complaining about his counsel's performance, stating among
other things that counsel pressured him to plead guilty. He also
alleged that he never received a fair deal from the prosecution. The
court construed this letter as a motion to withdraw Davis' guilty plea
and scheduled a hearing on the matter.

At the hearing held July 10, 1998, Davis' newly appointed counsel
argued for the first time that Davis' plea was not knowing and volun-
tary because even though the trial court explicitly advised Davis that
if he pled guilty he would waive his right to a jury trial, the court did
not say that Davis could never receive a trial of any kind. Davis there-
fore maintained that he believed, despite his guilty plea, that he could
still receive a bench trial at a later date.

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The district court found as fact that "just from his countenance, his
demeanor, and from everything in his testimony, that he's not being
truthful on that story." The court later issued a written order denying
the motion in which it applied the six-prong test set forth in United
States v. Wilson, 81 F.3d 1300, 1306 (4th Cir. 1996), for evaluating
motions to withdraw guilty pleas. Finding that all six factors weighed
against granting permission to withdraw, the court denied the motion.
The only issue in this appeal is the propriety of the district court's
denial of that motion.

We review a district court's refusal to grant a motion to withdraw
a guilty plea for abuse of discretion. Id. at 1305. Pursuant to Rule
32(e), the district court may grant a motion to withdraw a plea if the
defendant provides a "fair and just reason" for withdrawal. United
States v. Craig, 985 F.2d 175, 178 (4th Cir. 1993). Initially, we note
that the district court properly employed the six-factor test enunciated
in Wilson in considering this question. The six factors include
whether: (1) defendant has offered credible evidence that his plea was
not knowing or not voluntary; (2) defendant has credibly asserted his
legal innocence; (3) there has been a delay between the entering of
the plea and the filing of the motion; (4) the defendant has had close
assistance of competent counsel; (5) withdrawal will cause prejudice
to the government; and (6) will inconvenience the court and waste
judicial resources. Id. at 1306.

Davis focuses on the first factor, arguing that the trial court failed
to comply with Rule 11 by failing to explicitly inform him that his
plea waived the right to a trial of any kind. We find, however, that
the district court did not abuse its discretion in finding that Davis
offered no credible evidence to support his position. It is not surpris-
ing that during the colloquy the trial court referred to Davis' waiver
of his right to a trial as a waiver of his right to a jury trial, as the par-
ties were in the midst of a jury trial when the plea was entered. Davis'
position that the court's choice of words preserved his right to a bench
trial despite his plea not only defies common sense, but is contrary to
his acknowledgment during the Rule 11 proceeding that he under-
stood that his waiver forfeited various rights associated with a trial,
such as the right to testify and cross-examine witnesses. Based on
these considerations, and the court's assessment of the credibility of
Davis' testimony, the district court did not abuse its discretion by

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finding that Davis' waiver of his right to trial was knowing and volun-
tary.

There can be no doubt that Davis failed to credibly assert his inno-
cence. He conceded at the hearing on his motion to withdraw that he
was guilty of the charge to which he pled guilty, contending merely
that his involvement was less than that charged. Moreover, the court
found that voluminous evidence presented during the four-day trial of
Davis' codefendants established his guilt.

Regarding the third Wilson factor, although Davis filed his motion
to withdraw in May 1998, he did not first raise the ground asserted
for the motion until the hearing in July, approximately six months
after entrance of his plea, a significant delay. Moreover, Davis' aver-
ment in his motion that he was dissatisfied with his trial counsel was
belied by his statement during the Rule 11 hearing that he was satis-
fied with the representation and advice he received from counsel. A
defendant's statements at the Rule 11 hearing may not ordinarily be
repudiated. See United States v. Lambey, 974 F.2d 1389, 1395 (4th
Cir. 1992).

We further find that the district court reasonably accepted the Gov-
ernment's assertion that withdrawal of Davis' plea would prejudice
the Government because subsequent to trial many of the witnesses
who would have testified against Davis benefitted from substantial
assistance motions, jeopardizing their credibility in a future trial.
Finally, the court properly found that retrial would be both inconve-
nient and wasteful in light of the fact that substantial resources had
already been expended on a four-day trial that found Davis' codefen-
dants guilty, and which produced, in the court's view, strong evidence
of Davis' guilt.

Having found that the district court did not abuse its discretion in
denying Davis' motion to withdraw his guilty plea, we affirm the
judgment order of the district court. 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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