UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 97-4162

STEVE WAY,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
Irene M. Keeley, District Judge.
(CR-96-4)

Submitted: September 9, 1997

Decided: September 23, 1997

Before HAMILTON and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James T. Kratovil, KRATOVIL LAW OFFICES, Charles Town,
West Virginia, for Appellant. William D. Wilmoth, United States
Attorney, Sherry L. Muncy, Assistant United States Attorney, Elkins,
West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Steve Way, who pled guilty to conspiracy to transport stolen motor
vehicles in interstate commerce,1 appeals his conviction and sentence
claiming that the district court erred by refusing to allow him to with-
draw his guilty plea. Further, Way asserts that the district court erred
by denying him a two-point downward adjustment in his base offense
 3192 53 1 level under U.S. SENTENCING GUIDELIN
                      ES MANUAL § 3E1.1 (1995).

After a review of the record, we find no reversible error. Therefore,
we affirm Way's conviction and sentence.

First, Way claims that the district court erred by refusing to grant
his motion to withdraw his guilty plea. Rule 32(e) of the Federal
Rules of Criminal Procedure provides that a court may permit with-
drawal of a guilty plea if the motion is made before sentencing and
if the defendant establishes any "fair and just" reason for withdrawal
of the plea.2 Way has the burden of showing a "fair and just" reason
for the withdrawal,3 and we review a motion to withdraw a plea under
an abuse of discretion standard.4

In his motion to withdraw his guilty plea, Way claimed that his
plea should be withdrawn because he misunderstood the possible
length of his incarceration. Additionally, he asserted that he was not
competent to plead guilty due to a lack of education and intelligence.
Way's claims are without merit. The district court did not abuse its
discretion by denying Way's motion to withdraw his guilty plea
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1 See 18 U.S.C. §§ 371, 2312 (1994).
2 See United States v. Hyde, ___ U.S. ___, 65 U.S.L.W. 4369 (U.S.
May 27, 1997) (No. 96-667).
3 See FED. R. CRIM. P. 32(e); United States v. Moore, 931 F.2d 245, 248
(4th Cir. 1991).
4 See Moore, 931 F.2d at 248.

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because Way is in fact guilty of conspiring to transport stolen motor
vehicles in interstate commerce. At the FED. R. CRIM. P. 11 hearing,
Way stated under oath that he was in fact guilty of the crime charged.
His statements at the Rule 11 colloquy are presumptively trustworthy
and are considered conclusive absent compelling evidence showing
otherwise.5

Furthermore, Way never made credible assertions of innocence or
established that his plea was unknowing or involuntary. The district
court thoroughly questioned Way to ensure that he was competent to
enter a plea and that he understood the nature and consequences of
his plea. Specifically, the court inquired into Way's education, mental
health, use of drugs or medication, and whether Way understood all
the rights he was forfeiting by pleading guilty. Way acknowledged
that he understood his rights, consulted with counsel, understood the
consequences of his plea, and was freely and voluntarily pleading
guilty. The court also informed Way of the maximum sentence he
could receive; however, an accurate estimate of his sentence was not
possible until the presentence report was prepared. Way responded
that he understood and that he realized that he could not withdraw his
guilty plea if his sentence was more severe than anticipated. Thus, the
plea should be upheld because Way made an intelligent and informed
decision when he voluntarily pled guilty.6 The appropriately con-
ducted Rule 11 proceeding raises a strong presumption that the plea
is final and binding.7

Finally, Way argues that his guilty plea mandates an acceptance of
responsibility award. We find no merit in this challenge. The burden
is on Way to show that he is entitled to a downward adjustment,8 and
"the district court's decision not to reduce the offense level [on accep-
tance of responsibility grounds] will not be disturbed unless clearly
erroneous."9 The sentencing judge is in a unique position to evaluate
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5 See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).
6 See North Carolina v. Alford, 400 U.S. 25, 31 (1970); Boykin v.
Alabama, 395 U.S. 238, 242 (1969).
7 See United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (in
banc).
8 See United States v. Myers, 66 F.3d 1364, 1371 (4th Cir. 1995).
9 United States v. Curtis, 934 F.2d 553, 557 (4th Cir. 1991).

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a defendant's acceptance of responsibility,10 and given Way's attempt
to withdraw his guilty plea and equivocal statements at sentencing,
we do not think that the district court erred in denying credit for
acceptance of responsibility.

Accordingly, we affirm Way's conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED
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10 USSG § 3E1.1, comment. (n.5) (1995).

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