                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            JAN 23 2003
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 02-8015
 v.                                                D.C. No. 01-CR-45-D
                                                      (D. Wyoming)
 RAYMOND DANA JAMES, also
 known as Michael James Brewer,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.




      After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      On October 1, 2001, pursuant to a verbal plea agreement with the United

States, Defendant pled guilty to one count of Interstate Transfer of a Wire

Inception Device in violation of 18 U.S.C. § 2512(1)(a) and one count of

Possession of a Wire Inception Device in violation of 18 U.S.C. § 2512(1)(b). At

the time of the plea, Defendant was represented by counsel. On October 5, 2001,

Defendant submitted a pro se letter to the district court seeking to withdraw his

guilty plea. The district court denied Defendant’s motion, ruling that the

Government had not breached a material term of the plea agreement, and

sentenced Defendant to serve twelve months plus one day in prison. Defendant

appeals to this court.

      On appeal, Defendant claims that the district court erred in denying his

motion to withdraw his guilty plea. Defendant claims that as part of the

inducement for Defendant to enter into the plea agreement the Government agreed

to return certain confiscated items to Defendant on October 1, 2001. Defendant

claims that the Government breached a material term of the plea agreement by

failing to return Defendant’s computer in a timely manner and by removing the

hard drive. The Government responds that Defendant’s computer was returned

with only the illegal files erased. Defendant admits that the computer contained

several illegal files. It is also undisputed that the computer was returned on

October 2, 2001, one day after the October 1, 2001, deadline.


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      “Whether government conduct has violated a plea agreement presents a

question of law which we review de novo.” Allen v. Hadden, 57 F.3d 1529, 1534

(10th Cir. 1995); see also United States v. Hawley, 93 F.3d 682, 690 (10th Cir.

1996). However, we review for an abuse of discretion the district court’s denial

of a motion to withdraw a guilty plea. Barker v. United States, 579 F.2d 1219,

1223 (10th Cir. 1978). A defendant does not have an absolute right to withdraw

his guilty plea prior to sentencing. Fed. R. Crim. P. 32(e); see also Mabry v.

Johnson, 467 U.S. 504, 508-09 (1984). The defendant has the burden of proving

a “fair and just reason” to withdraw his guilty plea pursuant to Rule 32(e).

United States v. Burger, 964 F.2d 1065, 1070-71 (10th Cir. 1992).

      We have articulated seven factors to be considered in our determination of

whether a defendant has met the burden of establishing a “fair and just reason”

for withdrawing his guilty plea. United States v. Black, 201 F.3d 1296, 1299-

1300 (10th Cir. 2000); see also United States v. Gordon, 4 F.3d 1567, 1572 (10th

Cir. 1993). These factors are:

      (1) whether the defendant has asserted his innocence; (2) whether the
      government will be prejudiced if the motion is granted; (3) whether the
      defendant has delayed in filing the motion; (4) the inconvenience to the
      court if the motion is granted; (5) the quality of the defendant's assistance
      of counsel; (6) whether the plea was knowing and voluntary; (7) whether
      the granting of the motion would cause a waste of judicial resources.

Black, 201 F.3d at 1299-1300 (10th Cir. 2000).

      Our analysis of the Gordon factors reveals that Defendant’s request to

                                         -3-
withdraw his guilty plea was premised solely on a claimed violation of a non-

material, collateral provision of his oral plea agreement with the Government.

Defendant has not asserted his innocence. Additionally, we are convinced that

the Government would be severely prejudiced if the motion is granted because

key evidentiary items were either returned to Defendant or destroyed pursuant to

the plea agreement. Defendant was represented by counsel when he entered into

the plea agreement, and he entered into the plea agreement freely and voluntarily.

      Even if we view the facts as alleged by Defendant, we cannot hold that the

Government’s conduct has violated the oral plea agreement. Our review of the

record reveals that the computer was returned just one day after the October 1,

2001, deadline. Additionally, the oral plea agreement does not detail exactly how

the illegal files were to be erased from the computer. Since Defendant admits

that there were illegal files on the computer, we cannot find that the Government

engaged in misconduct when it allegedly removed the entire hard drive.

Therefore, in light of the Gordon factors and the facts of the instant case, we hold

that the district court did not abuse its discretion in denying Defendant’s motion

to withdraw his guilty plea.

      Motion to File Pro Se Brief Out of Time is GRANTED. 1 Motion to




    Counsel G. Mark Garrison’s Motion to Withdraw as Attorney of Record is
      1

GRANTED.

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Withdraw Waiver of Oral Argument is DENIED. The conviction and sentence

are AFFIRMED.

                                          Entered for the Court


                                          Monroe G. McKay
                                          Circuit Judge




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