UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-5013

LEWIS RICE, a/k/a Boo,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-96-145)

Submitted: July 21, 1998

Decided: August 19, 1998

Before ERVIN and WILKINS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Fredrick S. Kaufman, Richmond, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Sara E. Flannery, Special Assistant
United States Attorney, Richmond, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Lewis Thornton Rice, Jr., a/k/a "Boo," pleaded guilty to conspiring
to possess with intent to distribute and to distribute cocaine base and
marijuana in violation of 21 U.S.C. § 846 (1994), and was sentenced
to 120 months' imprisonment. On appeal, Rice alleges that the district
court abused its discretion in refusing to allow Rice to withdraw his
guilty plea. We affirm.

Rice, along with several other individuals, was arrested and
indicted after an intense police investigation into their drug conspir-
acy. Seven other co-defendants entered into plea agreements before
the scheduled trial date. Rice's own inculpatory statements to the
police as well as those of his co-defendants revealed his rather exten-
sive role in the conspiracy. However, Rice maintained he was inno-
cent during pretrial negotiations. On the eve of trial, despite all of the
evidence gathered against Rice, the Government agreed to allow Rice
to be considered a minimal participant in the conspiracy.* Defense
counsel and United States Attorneys further discussed the possibility
of Rice receiving consideration during sentencing under USSG
§ 5C1.2.

On the day of trial, Rice entered into a plea agreement with the
Government. In the agreement, the Government maintained that it
could prove that Rice was responsible for 50 to 150 grams of crack
cocaine and that Rice was a minimal participant in the conspiracy.
The Government further stated that it would not oppose Rice being
given three points for acceptance of responsibility. See USSG 3E1.1.

During the Rule 11 hearing, Rice under oath stated that he was sat-
isfied with his attorney's representation and stipulated to the facts as
stated under the Agreement. Furthermore, Rice acknowledged that his
sentence would be determined under the sentencing guidelines and
that he understood that no one could predict his exact sentence. At the
conclusion of the hearing, the court determined that the plea was vol-
_________________________________________________________________

*U.S. Sentencing Guidelines Manual § 3B1.2 (Nov. 1997).

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untarily and intelligently made. During his consultation with the pro-
bation officer, Rice refused to acknowledge the facts he stipulated to
in the Agreement and at the hearing. As a result, the probation officer
did not give Rice any points for acceptance of responsibility. The pro-
bation officer further maintained that Rice should not be attributed a
role as a minimal participant in the conspiracy. Rice subsequently
filed a motion for reconsideration under USSG § 5C1.2 and objec-
tions to the presentence report. Additionally, he filed a motion to
withdraw his guilty plea, forty-five days after pleading guilty.

At sentencing, the court denied Rice's motion to withdraw his
guilty plea finding there was no fair and just reason for the with-
drawal given Rice's voluntary and intelligent answers during the Rule
11 colloquy. Although the court denied Rice's motion to be consid-
ered for a three point reduction in his sentence on the basis of accep-
tance of responsibility, it did grant him a reduction in sentence as a
minimal participant in the conspiracy. Rice was accordingly sen-
tenced to 120 months' imprisonment.

The denial of a motion to withdraw a guilty plea is reviewed for
an abuse of discretion. See United States v. Craig, 985 F.2d 175, 178
(4th Cir. 1993). Withdrawal of a guilty plea is not a matter of right.
See United States v. Hyde, ___ U.S. ___, 65 U.S.L.W. 4369 (U.S.
May 27, 1997) (No. 96-667); United States v. Ewing, 957 F.2d 115,
119 (4th Cir. 1992). Under Fed. R. Crim. P. 32(d), Rice needed to
provide the court a "fair and just reason" for withdrawal of his guilty
plea. A "fair and just reason" is one that"essentially challenges . . .
the fairness of the Rule 11 proceeding." United States v. Lambey, 974
F.2d 1389, 1394 (4th Cir. 1992) (en banc). An appropriately con-
ducted Rule 11 proceeding, however, raises a strong presumption that
the guilty plea is final and binding. See id. The court evaluates the
proffered reason in light of: (1) whether the plea was knowing and
voluntary; (2) whether the defendant credibly asserted his legal inno-
cence; (3) the length of delay between the entry of the plea and the
filing of the motion to withdraw; (4) whether the defendant had close
assistance of effective counsel; (5) whether withdrawal would preju-
dice the government; and (6) whether withdrawal would inconve-
nience the court or waste judicial resources. See United States v.
Moore, 931 F.2d 245, 248 (4th Cir. 1991).

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Rice argues that he was ill advised by his counsel with respect to
the plea agreement. Specifically, Rice maintains that defense counsel
should have known and advised Rice that the assurances of the Gov-
ernment with respect to the reduction in sentence based on acceptance
of responsibility could not be delivered. Rice asserts that if defense
counsel had advised him accordingly, he would not have entered into
the plea agreement, but rather proceeded to trial. Rice further charges
that the district court failed to conduct an adequate Rule 11 hearing.

When the basis for a defendant's request to withdraw his plea is
poor advice from his attorney, he must show that his attorney's per-
formance fell below an objective standard of reasonableness and that
there was a reasonable probability that, but for counsel's errors, he
would have pleaded not guilty and insisted on going to trial. See
United States v. DeFreitas, 865 F.2d 80, 82 (4th Cir. 1989). Counsel's
erroneous advice regarding the sentence range is not a basis for with-
drawal of a plea when the defendant was made aware that his sen-
tence was not known at that time and that the court would determine
his sentence. See Lambey, 974 F.2d at 1395.

Applying the test set out in Moore, we find that Rice did not offer
a fair and just reason for withdrawal of his plea. After reviewing the
Rule 11 colloquy, we find that the court conducted an adequate Rule
11 colloquy, at which time Rice acknowledged responsibility for the
quantity of drugs stated in the plea agreement, claimed he was satis-
fied with his attorney's representation, and that he understood that his
sentence could not be predetermined. It was due to his own untruth-
fulness that Rice did not receive the three point reduction for accep-
tance of responsibility, not to any deficient conduct by his attorney.
There is nothing in the record to support Rice's assertion that his
attorney's representation fell below an objective standard of reason-
ableness.

We therefore find no abuse of discretion in the district court's
denial of Rice's motion to withdraw his guilty plea. Accordingly, we
grant Appellee's unopposed motion to submit the case on briefs and
affirm Rice's conviction and sentence. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court, and oral argument would not aid the
decisional process.

AFFIRMED

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