                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-2820
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
   vs.                                  * District Court for the
                                        * District of Minnesota.
Matthew Mark Montag,                    *
                                        *      [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                          Submitted: December 12, 2001
                             Filed: January 16, 2002
                                  ___________

Before WOLLMAN and HANSEN, Circuit Judges, and BATTEY,1 District Judge.
                         ___________

PER CURIAM.

        Matthew Montag (Montag) pleaded guilty to conspiracy to distribute five to
fifteen kilograms of methamphetamine in violation of 21 U.S.C. §§ 846 and
841(b)(1)(A). Five months later, Montag filed a motion to amend his plea, or in the
alternative, withdraw his plea. Montag asserted that he thought he was pleading
guilty to conspiracy to distribute five to fifteen pounds of methamphetamine rather
than five to fifteen kilograms. Additionally, he claimed that, due to his depression


         1
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota, sitting by designation.
and long-term substance abuse, his guilty plea was involuntary. Montag did not
request a hearing, either in written motion or orally. On February 27, 2001, the
district court2 found that there was no “fair and just reason” to allow Montag to
withdraw his plea, as Montag failed to present evidence of cognitive impairment at
the time he entered his guilty plea before the court. As to the mistake between
pounds and kilograms, the trial court found no basis to allow withdrawal because
Montag had not claimed actual innocence of the charge, nor had he shown prejudice
because the disparity in methamphetamine amounts had no effect on his sentence as
a career offender. On July 9, 2001, the trial court sentenced Montag to 235 months
imprisonment. Montag raises two issues on appeal. We affirm.

       Montag contends that the district court erred when it denied his motion to
withdraw or amend his guilty plea. He asserts that a hearing should have been held
before the lower court made its determination. We review the district court’s denial
of Montag’s motion to withdraw or amend his plea for abuse of discretion. United
States v. Jones, 111 F.3d 597, 601 (8th Cir. 1997).

       Under Rule 32(e) of the Federal Rules of Criminal Procedure, the court may
permit a defendant to withdraw his plea before sentencing “if the defendant shows
any fair and just reason” to do so. In United States v. Boone, this Court enumerated
factors to determine whether to allow a presentence motion to withdraw a guilty plea.
869 F.2d 1089, 1091-2 (8th Cir. 1989). A court must consider the following:



       (1) whether defendant established a fair and just reason to withdraw his
      plea; (2) whether defendant asserts his legal innocence of the charge; (3)
      the length of time between the guilty plea and the motion to withdraw;



      2
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
                                         -2-
      and (4) if the defendant established a fair and just reason for withdrawal,
      whether the government will be prejudiced.

Id.

        The first ground Montag asserts is that his confusion between pounds and
kilograms prevented him from entering a knowing and voluntary guilty plea. The
Court has reviewed the transcript of the change of plea hearing held by the trial court
and notes the thorough application of Fed. R. Crim. P. 11. At his plea hearing,
Montag was repeatedly told his plea was to kilograms of methamphetamine. The trial
court asked Montag if he understood Count I of the indictment, charging him with
conspiracy to distribute more than 500 grams of methamphetamine. Change of Plea
Hearing Transcript (Tr.) 8. Montag answered that he understood. Tr. 8. Next, the
trial court advised Montag of the base offense level for five to fifteen kilograms of
methamphetamine. Tr. 12. Then, when questioned by the Assistant United States
Attorney, Montag was asked if he agreed that a reasonable estimate of the drugs he
distributed during the course of the conspiracy was five to fifteen kilograms. Tr. 23.
Montag responded affirmatively. Tr. 23. Finally, when asked for his plea to Count
I of the indictment, charging him with conspiracy to distribute in excess of 500 grams
of methamphetamine, Montag entered a plea of guilty. Tr. 25.

        In its order denying Montag’s motion to amend or withdraw his guilty plea,
the district court determined that Montag was not asserting his legal innocence to the
charges, but rather contesting the quantity of drugs. A distinction in drug quantities
is generally relevant for sentencing purposes. See U.S.C. § 841; U.S.S.G. §
2D1.1(1)(c). Montag’s base offense level of 37 would have remained unchanged,
however, even if he pleaded to five to fifteen pounds of methamphetamine, as his plea
would still have been for a quantity of drugs over 500 grams (5-15 pounds equals




                                          -3-
2268-6804 grams3). See 21 U.S.C. § 841(b)(1)(A)(viii); U.S.S.G. § 2D1.1(1)(c)(2).
Therefore, Montag’s confusion did not prejudice his sentence, nor is he asserting
actual innocence of the crime charged.

       As to Montag’s asserted mental health problems, Montag provided no evidence
that depression or chemical use impaired his ability to enter a plea. Montag alludes
to a psychiatric exam ordered prior to sentencing by the lower court, but Montag
asserted no mental health impairment at his sentencing hearing. His counsel merely
indicated that Montag was immature, had an “inability to understand,” and “just
doesn’t get it.” Sentencing Transcript 13-14. The presentence report indicated
“periodic depression” and “suicidal ideation,” but no discernable evidence of
cognitive impairment at the time his plea was entered. Montag Presentence Report
¶ 60. See United States v. Fitzhugh, 78 F.3d 1326, 1329 (8th Cir. 1996) (affirmed the
denial of defendant’s motion where defendant presented no credible medical evidence
supporting his claim that his heart condition impaired his memory, rendering his plea
unknowing and involuntary); United States v. McNeely, 20 F.3d 886, 888 (8th Cir.
1994) (affirmed the denial of defendant’s motion where defendant presented no
evidence that his untreated hypoglycemia rendered his plea unknowing and
involuntary).

       The plea hearing transcript establishes that Montag understood the charge he
was pleading to and entered his plea knowingly and voluntarily. The defendant bears
the burden of establishing grounds for withdrawal of a plea, and Montag has not met
this burden. See United States v. Wojcik, 60 F.3d 431, 434 (8th Cir. 1995). A district
court is not required to hold an evidentiary hearing on a defendant’s motion to
withdraw his guilty plea where the allegations for withdrawal are not supported by
specific facts. Id. citing United States v. Jagim, 978 F.2d 1032, 1037 (8th Cir. 1992).


      3
          Measurement Conversion Table, U.S.S.G. § 2D1.1, Application Notes 10.


                                          -4-
Neither did Montag request a hearing, nor did he object when the lower court denied
his motion without a hearing.

       One additional factor is that Montag waited nearly five months after entering
his plea to seek withdrawal. See Boone, 869 F.2d 1089, 1092 (affirming district
court’s denial of defendant’s motion to withdraw where defendant did not assert his
legal innocence and waited two months before attempting to withdraw his guilty
plea.)

       Montag’s second and final argument on appeal is that the district court
improperly classified him as a career offender under U.S.S.G. § 4B1.1. This section
states that a defendant 18 years of age or older at the time he committed the instant
offense with an instant offense of conviction for controlled substances and with at
least two prior felony convictions of crimes of violence is classified and sentenced
as a career offender. U.S.S.G. § 4B1.1. Montag was previously convicted of at least
two prior third-degree burglaries, two of which were of business establishments. The
Eighth Circuit has held that burglaries of non-dwellings are considered crimes of
violence for career offender purposes. United States v. Stevens, 149 F.3d 747, 749
(8th Cir. 1998); United States v. Hascall, 76 F.3d 902, 904-5 (8th Cir. 1996).

      Accordingly, we affirm the judgment of the district court. See 8th Cir. R. 47B.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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