                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-2418
                                   ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          *   Appeal from the United States
      v.                                  *   District Court for the
                                          *   Western District of Missouri.
William J.R. Embrey,                      *
                                          *
             Appellant.                   *

                                   ___________

                             Submitted: January 12, 2001

                                  Filed: May 22, 2001
                                   ___________

Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and DOTY,1
      District Judge.
                          ___________

BEAM, Circuit Judge.

      William J.R. Embrey appeals his conviction and sentence of 262 months for
being a felon in possession of a firearm. He asserts the district court2 erred when it
overruled his motion to withdraw his guilty plea. We affirm.


      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota, sitting by designation.
      2
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
I.    BACKGROUND

       Embrey had been convicted for bank robbery in 1967 and for bank robbery and
kidnapping in 1980. In 1994, while Embrey was serving a sentence for kidnapping and
bank robbery, a panel of this court granted his petition for a writ of habeas corpus,
finding that the kidnapping sentence had been an error. See Embrey v. Hershberger,
106 F.3d 805 (8th Cir. 1997) (vacated). That opinion was later vacated by the court
en banc. See Embrey v. Hershberger, 131 F.3d 739 (8th Cir. 1997) (en banc) (finding
Embrey's habeas corpus action procedurally barred). In the interim, Embrey was
mistakenly released from prison. He was later apprehended, although he was allowed
to remain free on bond pending the outcome of his application for a writ of certiorari
to the Supreme Court. On October 5, 1998, the Supreme Court denied certiorari.
Embrey's bond was subsequently revoked and he was ordered re-arrested in December
1998. Later that month, Embrey was a passenger in a car stopped by highway patrol
officers in Missouri. Weapons were found in the car. He was charged with being a
felon in possession of a weapon in violation of 18 U.S.C. §§ 922(g) and 924(e)(1). He
moved to suppress the evidence found in the search of the vehicle. At the suppression
hearing, the driver of the car, Luie White, testified that Embrey had planned to rob a
bank and had expressed a willingness to shoot the officers. The district court found
probable cause for the stop and overruled the motion to suppress. Embrey later entered
into a plea agreement with the government and entered a plea of guilty.

       At the plea hearing, Embrey first asserted that his counsel had a conflict of
interest, but later assured the district court that he had "worked out" whatever problems
he had with his counsel. The district court conducted the inquiry mandated by Rule 11
and accepted the plea. The district court found that the evidence established a factual
basis for the plea and Embrey admitted the crime during the Rule 11 colloquy and in
the plea agreement.

      Embrey later moved to withdraw the plea. He asserted that the plea had not
been knowing or voluntary because he had medical problems at the time and because

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his attorney had a conflict of interest and had rendered ineffective assistance. After a
hearing, the district court found that Embrey had presented no fair and just reason to
withdraw the plea. The district court expressly discredited Embrey's testimony that the
entry of the plea had not been voluntary. Embrey pleaded the Fifth Amendment in
answer to the district court's questions regarding the representations Embrey had made
under oath at the plea hearing. Embrey was sentenced to 262 months on the weapon
charge, to be served concurrently with his remaining term on the bank robbery charge.

       Embrey appeals the district court's order denying leave to withdraw the plea. He
also contends that the felon-in-possession statute is unconstitutional.

II.   DISCUSSION

        A guilty plea is a solemn act not to be set aside lightly. United States v. Prior,
107 F.3d 654, 657 (8th Cir. 1997). A district court may permit a defendant to
withdraw a guilty plea prior to sentencing on a showing of "any fair and just reason."
Fed. R. Crim. P. 32(d). A defendant bears the burden of establishing such a
justification. Prior, 107 F. 3d at 657. Although a defendant seeking to withdraw a plea
before sentencing is given a more liberal consideration than someone seeking to
withdraw a plea after sentencing, a defendant has no absolute right to withdraw a guilty
plea before sentencing, and the decision to allow or deny the motion remains within the
sound discretion of the trial court. Id. Factors to consider in determining whether to
set aside a plea of guilty include whether the defendant has demonstrated a fair and just
reason; whether the defendant has asserted his innocence; the length of time between
the guilty plea and the motion to withdraw; and whether the government would be
prejudiced. Id. We review the district court's denial of a motion to withdraw a plea for
an abuse of discretion. Id.

      We have reviewed the record and find no abuse of discretion by the district
court. We agree with the district court that Embrey has not shown a fair and just
reason for withdrawal of the plea. The medical evidence does not support Embrey's

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claim that he was incompetent at the time he entered the plea and the district court
expressly discounted Embrey's credibility on that issue. Regarding the alleged conflict
of interest and ineffective assistance, Embrey stated under oath at the plea hearing that
he had "worked out" problems with his attorney and was satisfied with his
representation. Moreover, claims of ineffective assistance of counsel are not normally
considered on direct appeal. United States v. Jones, 121 F.3d 369, 370 (8th Cir. 1997).
The proper procedural mechanism for such a claim is a motion under 28 U.S.C. § 2255.
United States v. Payton, 168 F.3d 1103, 1105 n.2 (8th Cir. 1999).3 There is no support
in the record for Embrey's contention that the district court failed to comply with Rule
11 of the Federal Rules of Criminal Procedure. We agree with the district court's
assessment that Embrey "truly tried to manipulate the system."

       Embrey's assertion regarding the constitutionality of the felon-in-possession
statute is foreclosed by United States v. Larry, 126 F.3d 1077, 1078 (8th Cir. 1997)
(finding section 922(g) a valid exercise of Congress' power to regulate commerce) (per
curiam).

III.   CONCLUSION

       The judgment of the district court is affirmed.




       3
        We note that Embrey purportedly waived his right to challenge the effectiveness
of his counsel as part of his plea agreement. Regarding the validity of that waiver, see
DeRoo v. United States, 223 F.3d 919, 924 (8th Cir. 2000) ("[a] defendant's plea
agreement waiver of the right to seek section 2255 post-conviction relief does not
waive defendant's right to argue, pursuant to that section, that the decision to enter into
the plea was not knowing and voluntary because it was the result of ineffective
assistance of counsel").

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A true copy.

      Attest:

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




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