                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-5027



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


LATRON MONTAGUE,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
Chief District Judge. (CR-04-116)


Submitted:   October 31, 2006          Decided:     November 29, 2006


Before WILLIAMS and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Diana H. Cap, Research and
Writing Attorney, Raleigh, North Carolina, for Appellant. Frank D.
Whitney, United States Attorney, Anne M. Hayes, Christine Witcover
Dean, Assistant United States Attorneys, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Latron Montague pled guilty to one count of possession of

a firearm and ammunition by a felon, in violation of 18 U.S.C.

§§ 922(g)(1), 924 (2000).     Montague was sentenced to thirty-seven

months’ imprisonment.      On appeal, Montague contends the district

court abused its discretion by denying his motion to withdraw his

guilty plea.   We affirm.

          A    defendant    may   withdraw   a   guilty   plea   prior   to

sentencing if he “can show a fair and just reason for requesting

the withdrawal.”    Fed. R. Crim. P. 11(d)(2)(B).         In determining

whether a defendant should be allowed to withdraw his guilty plea,

a district court should consider:

     (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).               We

review a 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).

          The relevant factor at issue in this appeal is whether

Montague has credibly asserted his legal innocence.               Montague



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argues that North Carolina v. Allen, 615 S.E.2d 256, 265 (N.C.

2005) (holding, after Blakely v. Washington, 542 U.S. 296 (2004),

statutory maximum is the maximum a defendant can face in light of

his criminal history and the facts found by a jury or admitted by

defendant), establishes his legal innocence.        Montague’s argument

is squarely foreclosed by this court’s decision in United States v.

Harp, 406 F.3d 242, 246-47 (4th Cir.), cert. denied, 126 S. Ct. 297

(2005), which holds that United States v. Jones, 195 F.3d 205 (4th

Cir. 1999), is still viable after Blakely and United States v.

Booker, 543 U.S. 220 (2005), and reaffirms that a prior North

Carolina conviction satisfies § 922(g)(1) if any defendant charged

with that crime could receive a sentence in excess of one year.

Thus, because it is undisputed that a sentence of over twelve

months could be imposed on a defendant convicted of felony breaking

and entering a motor vehicle in North Carolina, Montague’s prior

conviction   was   properly    considered   a   predicate   felony   under

§ 922(g)(1).   Therefore, we conclude the district court did not

abuse its discretion in denying Montague’s motion to withdraw his

guilty plea.

          Accordingly,    we    affirm    Montague’s   conviction.     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.



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        AFFIRMED




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