UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 97-4364

DENNIS J. OWEN,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CR-96-10022)

Submitted: February 3, 1998

Decided: March 27, 1998

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

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Affirmed by unpublished per curiam opinion.

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COUNSEL

John S. Edwards, Roanoke, Virginia, for Appellant. Robert P. Crouch,
Jr., United States Attorney, Anthony P. Giorno, Assistant United
States Attorney, Roanoke, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Dennis J. Owen appeals from his convictions on four counts of
mail fraud, 18 U.S.C. § 1341 (1994), and two counts of money laun-
dering, 18 U.S.C. § 1957(a) (1994), for which he was sentenced to
thirty-seven months imprisonment. Owen claims that the Government
violated the Justice Department's Petite Policy and that, therefore, his
guilty plea was involuntary and the indictment should have been dis-
missed. Owen also claims that his attorney was ineffective for failing
to raise these claims before the district court. Finally, Owen claims
that the Government breached the plea agreement by failing to move
for a downward departure based on substantial assistance.1 For the
reasons that follow, we affirm.

In September 1996, Owen was convicted in Virginia state court of
arson arising out of a house fire in 1991. While that charge was pend-
ing, a federal investigation resulted in Owen's indictment for mail
fraud and money laundering. Ten counts of the indictment were based
on Owen's collection of fire insurance proceeds on the residence that
was the subject of his state arson conviction. Five counts were based
on a 1995 incident in which Owen attempted to collect on his renter's
insurance for a sham burglary. Owen entered into a plea agreement
with the Government in which he agreed to plead guilty to six counts
in exchange for the dismissal of the remaining counts. Although
Owen's attorney met with government representatives to determine if
Owen could earn substantial assistance credit, Owen failed to cooper-
ate with law enforcement officials and was unsuccessful in providing
any information in furtherance of their investigative efforts.2

Owen claims, first, that the government violated the Justice Depart-
ment's Petite Policy and, therefore, the district court erred in denying
_________________________________________________________________
1 U.S. Sentencing Guidelines Manual, § 5K1.1 (1995).
2 The investigation was unrelated to Owen's offense and involved a
task force comprised of representatives of state and federal agencies,
including the Federal Bureau of Investigation, Bureau of Alcohol,
Tobacco and Firearms, the Pittsylvania County Sheriff's Department, the
Danville Police Department, and the Virginia State Police.

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his motions to withdraw his guilty plea and to dismiss the indictment
based on that assertion. Owen also claims that he was denied effective
assistance of counsel because his attorney failed to obtain a dismissal
of the indictment. The "Petite Policy" essentially provides "that no
federal case should be tried when there has already been a state prose-
cution for substantially the same act or acts" unless the appropriate
Justice Department officials approve the federal indictment. See
United States v. Howard, 590 F.2d 564, 567 n.2 (4th Cir. 1979).
Where, as here, the conduct involved in the state prosecution (arson)
is different in nature and degree from the federal prosecution (use of
the mail to commit insurance fraud), the Petite Policy does not apply.
See id. at 567. In any event, the Petite Policy does not confer any sub-
stantive rights on criminal defendants. See United States v. Musgrove,
581 F.2d 406, 407 (4th Cir. 1978). Accordingly, the district court did
not err in denying Owen's motion to dismiss the indictment based on
this claim.

Next Owen contends that the district court erred in denying his
motion to withdraw his guilty plea based on his attorney's failure to
advise him of the applicability and enforcement of the Petite Policy.
The withdrawal of a guilty plea is not a matter of right. See United
States v. Ewing, 957 F.2d 115, 119 (4th Cir. 1992). The defendant
bears the burden of showing a fair and just reason for the withdrawal
even in the absence of a showing of prejudice by the government. See
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). On appeal,
the district court's refusal to allow the withdrawal of a guilty plea is
reviewed for abuse of discretion. See United States v. Wilson, 81 F.3d
1300, 1305 (4th Cir. 1996).

Applying the test set out in United States v. Moore, 931 F.2d at
248, we find that Owen did not offer a fair and just reason for with-
drawal of his plea. First, Owen did not assert his innocence or that,
aside from his contentions regarding the Petite Policy, his plea had
been involuntary or unknowing. Second, there was a five-month delay
between the entry of his plea and his request to withdraw it. See id.
(six-week delay, combined with other factors, supported district
court's denial of withdrawal motion). Finally, we find that Owen had
the close assistance of competent counsel. Accordingly, we find that
the district court did not abuse its discretion by denying Owen's
motion to withdraw his plea.

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Owen claims that he was denied effective assistance of counsel
because his attorney failed to pursue dismissal of the indictment under
the Petite Policy. A claim of ineffective assistance of counsel should
be raised by motion under 28 U.S.C.A. § 2255 (West 1994 & Supp.
1997), and not on direct appeal, unless it "conclusively appears" from
the record that counsel did not provide effective assistance. United
States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). Because it
does not conclusively appear from the face of the record that Owen's
defense counsel failed to provide effective representation, Owen
should assert this claim in a § 2255 proceeding.

Finally, Owen claims that the Government breached the plea agree-
ment by "failing to provide the opportunity to earn substantial assis-
tance credit." The plea agreement clearly reserves to the Government
the sole discretion to decide whether to file a motion for a downward
departure based upon substantial assistance. The Government did not
breach the plea agreement by failing to move for a reduction because
no enforceable obligation was created in the plea agreement and
Owen has made no showing that the decision was based on an uncon-
stitutional motive. See Wade v. United States , 504 U.S. 181, 185-86
(1992); United States v. Wallace, 22 F.3d 84, 87 (4th Cir. 1994). In
any event, the district court found that Owen was provided a reason-
able opportunity to earn substantial assistance credit but failed to do
so.

Accordingly, we affirm Owens's convictions. We dispense 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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