                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4578


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DAMIEN COURTNEY FITZGERALD, a/k/a Crazy Man, a/k/a Big,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Danville.    Jackson L. Kiser, Senior
District Judge. (4:12-cr-00032-JLK-2)


Submitted:   March 11, 2014                 Decided:   March 28, 2014


Before NIEMEYER, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Wayne D. Inge, LAW OFFICE OF WAYNE D. INGE, Roanoke, Virginia,
for Appellant. Timothy J. Heaphy, United States Attorney, Drew
J.M. Bradylyons, Special Assistant United States Attorney,
Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Damien    Fitzgerald      pled      guilty     to    two       counts   of

distribution      of    cocaine      base,     in     violation        of    21   U.S.C.

§ 841(a)(1) (2012), and one count of possession of a firearm

during and in relation to a drug trafficking crime, in violation

of 18 U.S.C. § 924(c)(1)(A) (2012).                  Prior to being sentenced,

Fitzgerald moved pro se to withdraw his guilty plea.                              Without

appointing new counsel, the district court denied the motion and

sentenced Fitzgerald to 180 months’ imprisonment.                            On appeal,

Fitzgerald contends that the district court erred in denying his

motion to withdraw his guilty plea and that he was effectively

abandoned at the hearing because of a conflict of interest with

his counsel.      We affirm.

              We review a district court’s denial of a motion to

withdraw a guilty plea for abuse of discretion.                          United States

v. Nicholson, 676 F.3d 376, 383 (4th Cir. 2012).                            “A defendant

has no absolute right to withdraw a guilty plea[.]”                          Id. at 383-

84 (internal quotation marks omitted).                     Instead, the defendant

bears   the    burden   of   “show[ing]       a     fair   and    just      reason”   for

withdrawing     his    guilty   plea.        Fed.    R.    Crim.   P.       11(d)(2)(B);

Nicholson, 676 F.3d at 383.

              This court has outlined six factors that the district

court   should     evaluate     to    determine       whether      a     defendant    is

entitled to withdraw his guilty plea:

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       (1)   whether  the  defendant   has  offered  credible
       evidence that his plea was not knowing or not
       voluntary, (2) whether the defendant has credibly
       asserted his legal innocence, (3) whether there has
       been a delay between the entering of the plea and the
       filing of the motion, (4) whether defendant has had
       close assistance of competent counsel, (5) whether
       withdrawal will cause prejudice to the government, and
       (6) whether it will inconvenience the court and waste
       judicial resources.

United   States   v.   Moore,   931   F.2d   245,   248   (4th     Cir.   1991).

While all the factors noted in Moore should be considered, the

key factor to determining whether a motion to withdraw should be

granted is whether the Rule 11 hearing was properly conducted.

Nicholson, 676 F.3d at 384.

             Fitzgerald does not challenge on appeal the validity

of the Rule 11 proceeding.        Rather, his sole contention is that

he could not have pled guilty without reviewing the Government’s

evidence against him.      The district court noted that Fitzgerald

cannot read or write and that Fitzgerald waited ten weeks to

file   his   motion.     Further,     at   his   plea   hearing,    Fitzgerald

repeatedly affirmed his guilt under oath, stated that he was

satisfied with his counsel, stated that he had discussed his

case and the nature of the charges against him with counsel

numerous times, and affirmed that there was a factual basis to

support his guilt.      See Blackledge v. Allison, 431 U.S. 63, 74

(1977) (holding that statements under oath are entitled to “a

strong presumption of verity”).            In light of these admissions


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and the Moore factors, we conclude that the district court did

not    abuse     its     discretion     by    concluding       that    Fitzgerald’s

contentions in his motion were incredible and that his plea was

knowing and voluntary.

            Lastly,       Fitzgerald    argues    that     he    was    effectively

abandoned at the withdrawal hearing because, as a result of his

allegations of ineffective assistance of counsel, his counsel’s

representation was compromised by a conflict of interest.                         We

have held that:

       Where . . . a defendant urges the ineffectiveness of
       counsel as the basis of a challenge to the denial of a
       . . . motion [to withdraw a guilty plea], the claim is
       only advanced for its relevance to the determination
       whether . . . [the motion should be granted], and not
       as an independent constitutional basis for reversal.

United States v. Craig, 985 F.2d 175, 178 (4th Cir. 1993).                       The

question,      therefore,     is    “whether    the     underlying      motion   had

sufficient merit to create an actual conflict of interest or

present a plausible alternative defense strategy.”                        Hines v.

Miller, 318 F.3d 157, 163 (2d Cir. 2003) (internal quotation

marks omitted).           Because Fitzgerald’s motion to withdraw was

wholly frivolous, we conclude that the district court did not

abuse its discretion by not appointing new counsel to represent

Fitzgerald at the withdrawal hearing.

            Accordingly, we affirm the district court’s judgment.

We    dispense    with    oral     argument   because    the    facts    and   legal


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contentions   are   adequately   presented   in   the   materials   before

this court and argument would not aid the decisional process.



                                                                AFFIRMED




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