                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                            UNITED STATES COURT OF APPEALS
                                                                                 MAY 20 2003
                                       TENTH CIRCUIT
                                                                              PATRICK FISHER
                                                                                        Clerk

 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,
 v.                                                             No. 02-5139
 MELDON ALLEN,                                            (D.C. No. 01-CR-31-K)
                                                               (N.D. Okla.)
              Defendant-Appellant.




                                    ORDER AND JUDGMENT*


Before HARTZ, BALDOCK, and McCONNELL, Circuit Judges.**


          Defendant Meldon Allen appeals the district court’s denial of his motion to

withdraw his guilty plea. Defendant pled guilty to several charges related to a conspiracy

to distribute illegal narcotics. We have jurisdiction pursuant to 28 U.S.C. § 1291. We

affirm.



          This order and judgment is not binding precedent, except under the doctrines of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.

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

unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(A)(2). The case is therefore
ordered submitted without oral argument.
                                             I.

       A 153-count indictment charged Defendant Meldon Allen and several co-

defendants with various criminal acts related to an alleged conspiracy to transport, store

and distribute cocaine, cocaine base and marijuana, and to launder the profits associated

with the venture. Defendant’s jury trial began on April 15, 2002. On the first day of trial,

two Government witnesses, co-conspirator Gerald Herring and Drug Enforcement

Administration Special Agent Darrell Smith, testified on direct examination. Following

this testimony, which the parties agree was extremely damaging to Defendant’s case,

Defendant and his attorney met with the Government. Defendant agreed to plead guilty

to specific charges in the indictment. The Government agreed to forego prosecution of

the remaining charges. Defendant then indicated to the district court his intent to plead

guilty. After questioning Defendant on the knowing and voluntary nature of his plea, the

court dismissed the jury.

       The following morning, Defendant pled guilty to three charges: Count 1,

conspiracy to possess with intent to distribute cocaine in excess of five kilograms in

violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B)(ii),(iii); Count 12, maintaining

a place where controlled substances are stored and controlled in violation of 21 U.S.C.

§ 856; and Count 152, investment of illegal drug profits in violation of 21 U.S.C. § 854.

Defendant entered his guilty plea without the benefit of a plea agreement. But, by

pleading guilty, Defendant avoided prosecution for offenses carrying a likely sentence of


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life imprisonment.

       The Presentence Investigative Report (“PSR”) issued July 12, 2002 calculated a

sentencing range of 235 to 293 months imprisonment based upon a total offense level 38

and a criminal history category I. On July 26, 2002, Defendant filed a motion to

withdraw his guilty plea, asserting the plea was not intelligent and voluntary because it

was made in haste during trial. The district court held a hearing on Defendant’s motion.

After hearing argument, the court denied the motion. Specifically, the district court

analyzed each of the seven factors this Court identified in United States v. Gordon, 4

F.3d 1567, 1572 (10th Cir. 1993), and concluded the factors weighed against allowing

Defendant to withdraw his plea. The district court then sentenced Defendant to 252

months imprisonment.

                                             II.

       We review for an abuse of discretion the district court’s denial of Defendant’s

motion to withdraw his guilty plea. United States v. Siedlik, 231 F.3d 744, 748 (10th Cir.

2000). Prior to sentencing, the district court “may permit the plea to be withdrawn if the

defendant shows any fair and just reason.” Fed. R. Crim. P. 32(e).1 The burden is on the

defendant to establish a “fair and just reason” for the withdrawal of the plea. Siedlik, 231

F.3d at 748 (citations omitted).


       1
        Fed. R. Crim. P. 32(e) was in effect at the time Defendant filed his pre-sentence
motion. Effective December 1, 2002, the plea withdrawal provision was moved to Fed.
R. Crim. P. 11(d)(2)(B).

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       Although courts generally view with favor a defendant’s motion to withdraw a

plea, such motions are not automatically granted. United States v. Rhodes, 913 F.2d 839,

845 (10th Cir. 1990). As this Court previously stated:

       Even though the general rule is that motions to withdraw guilty pleas before
       sentencing are to be freely allowed and treated with liberality, still the decision
       thereon is within the sound discretion of the trial court. Thus, unless it is shown
       that the trial court acted unjustly or unfairly, there is no abuse of discretion. It is
       within the sound discretion of the trial court to determine what circumstances
       justify granting such a motion.

Siedlik, 231 F.3d at 748 (quoting United States v. Hickok, 907 F.2d 983, 986 (10th Cir.

1990)). Thus, “we will not reverse absent a showing that the trial court acted ‘unjustly or

unfairly.’” Id. (quoting United States v. Kramer, 168 F.3d 1196, 1202 (10th Cir. 1999)).

       This Court has identified seven factors the district court should consider in

deciding whether to allow a defendant to withdraw a guilty plea: “(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; and (7) whether

the granting of the motion would cause a waste of judicial resources.” Gordon, 4 F.3d at

1572. The district court expressly considered each of these factors in denying

Defendant’s motion. After reviewing the record, we agree with the district court that

these factors weigh against allowing Defendant to withdraw his guilty plea.



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       Although Defendant asserts his innocence, it is a selective assertion. As the

district court noted, Defendant contradicts only certain elements of the Government’s

case, such as the amount of cocaine base attributable to his conspiracy. Defendant does

not assert he did not participate in a conspiracy to possess and distribute illegal narcotics.

In his plea agreement and plea allocution, Defendant stated facts sufficient to support his

conviction on each charge. Defendant’s failure to assert actual innocence weighs against

granting his motion.

       The district court determined the Government would be prejudiced by permitting

Defendant to withdraw his plea. The court specifically found the Government had fully

revealed its trial strategy, including the order or proof and the identification of exhibits,

on the first day of trial. The prejudice to the Government weighs against granting

Defendant’s motion. Defendant also waited approximately three months to file a motion

to withdraw his guilty plea. The district court found Defendant waited to withdraw his

plea until he saw the PSR calculations of his likely sentence. The court found this timing

extremely suspicious and concluded the delay weighed against granting the motion. We

agree. The district court next found the court would be inconvenienced significantly if it

permitted Defendant to withdraw his plea. When Defendant agreed to plead guilty, the

court had already picked a jury and spent a day at trial. These steps would have to be

repeated if the court granted Defendant’s motion. This also weighs against granting

Defendant’s motion.


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       Significantly, the district court found Defendant’s counsel provided excellent legal

assistance. The Government attorney concurred in the court’s assessment, as did

Defendant. The high quality of legal assistance Defendant received in making his

decision to plead guilty weighs against allowing Defendant to withdraw his plea. Equally

significant, Defendant’s decision to plead guilty was both knowing and voluntary. Before

dismissing the jury, and again during Defendant’s change of plea hearing, the district

court questioned Defendant extensively on the knowing and voluntary nature of his plea.

The transcripts from these colloquies provide ample evidence Defendant’s plea was a

knowing and voluntary decision. Thus, this factor also weighs against granting

Defendant’s motion. Finally, because the evidence establishes Defendant plea was

knowing and voluntary and that he actually and admittedly committed the crimes to which

he pled guilty, granting Defendant’s motion would be a waste of judicial resources.

       The purpose of allowing a defendant to withdraw a guilty plea is to correct a

decision that was made in haste and without proper deliberation by a confused defendant.

See United States v. Pluta, 144 F.3d 968, 973 (6th Cir. 1998). In this case, Defendant

made a knowing and voluntary decision to plead guilty to three of the many charges for

which he was indicted. Defendant was represented by competent counsel at the time he

entered the plea and did not seek to withdraw his plea until probation issued a PSR

establishing his likely sentence. The district court weighed the appropriate factors in

considering Defendant’s motion to withdraw his guilty plea and did not abuse its


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discretion in denying the motion.

      AFFIRMED.

                                        Entered for the Court,



                                        Bobby R. Baldock
                                        Circuit Judge




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