UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-4408

MAURICE ALBERT JOHNSON,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CR-98-3-PJM)

Submitted: February 26, 1999

Decided: March 25, 1999

Before ERVIN, LUTTIG, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Joshua R. Treem, Harry Levy, SCHULMAN, TREEM, KAMINKOW
& GILDEN, P.A., Baltimore, Maryland, for Appellant. Lynne A. Bat-
taglia, United States Attorney, Rod J. Rosenstein, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Maurice Albert Johnson appeals his conviction and sentence
entered pursuant to his guilty plea to bank robbery in violation of 18
U.S.C. § 2113(a) (1994). Johnson's plea agreement contemplated the
possibility that the Government would move for a reduction of John-
son's sentence if Johnson provided the Government with substantial
assistance. See United States Sentencing Guidelines Manual § 5K1.1
(Nov. 1997). The Government retained the "sole discretion" of deter-
mining whether Johnson had rendered assistance sufficiently substan-
tial to warrant a motion for a downward departure. When called upon
to testify against an alleged co-conspirator, however, Johnson initially
refused. As a result of his refusal, the Government did not call him
as a witness in the alleged co-conspirator's prosecution and eventu-
ally declined to file a motion under § 5K1.1.

When informed of the Government's intention at sentencing, John-
son requested that he be allowed to withdraw his guilty plea. See Fed.
R. Crim. P. 32(e). Finding Johnson's plea entirely voluntary, the dis-
trict court denied Johnson's motion. Johnson then sought to have the
district court compel the Government's motion for a downward
departure. The district court noted that the Government had retained
discretion regarding the propriety of such a motion and declined to
compel the Government to seek a downward departure. Without the
benefit of the departure, the district court sentenced Johnson to 168
months imprisonment. Johnson appeals.

As a threshold matter, Johnson contends that the district court erred
by accepting a guilty plea that was not knowing and voluntary. John-
son claims that the district court erred in failing to inquire whether
Johnson understood that the Government retained sole discretion in
determining his eligibility for a substantial assistance reduction. As a
result, suggests Johnson, his plea was unknowing and involuntary.
The district court complied in all respects with Fed. R. Crim. P. 11.
An "appropriately conducted Rule 11 proceeding . . . must be recog-
nized to raise a strong presumption that the plea is final and binding."
United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en
banc). In determining whether the proceeding comported with Rule

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11, "this Court should accord deference to the trial court's decision
as to how best to conduct the mandated colloquy with the defendant."
United States v. DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). More-
over, any technical violation of the Rule is evaluated for harmless
error. See Fed. R. Crim. P. 11(h); DeFusco, 949 F.2d at 117. As a
result, this Court may vacate a conviction resulting from a guilty plea
"only if the trial court's violations of Rule 11 affected the defendant's
substantial rights." DeFusco, 949 F.2d at 117.

In this case, the district court conducted a thorough hearing, insur-
ing that Johnson understood the rights he would forego by pleading
guilty, the elements of the charge to which he was pleading guilty, the
penalties he faced, the effect of supervised release, and the impact of
the Sentencing Guidelines. Further, the court ascertained that John-
son's plea was voluntary and that a factual basis existed for his plea.
Johnson provides no support for the contention that the district court
was required to query Johnson further regarding a specific and
bargained-for provision of the plea agreement. The unambiguous pro-
vision leaving the determination of Johnson's "substantial assistance"
to the sole discretion of the Government was contained in the plea
agreement and emphasized as one of the elements of the agreement
by the prosecution at the hearing. Accordingly, we find that the dis-
trict court fully complied with Rule 11 and properly found that John-
son's plea was knowing and voluntary. See id. at 116-17.

Johnson next argues that the district court abused its discretion in
not allowing the withdrawal of his guilty plea after Johnson learned
that the Government would not file a motion under§ 5K1.1. The
withdrawal of a guilty plea is not a matter of right. See United States
v. Ewing, 957 F.2d 115, 118 (4th Cir. 1992) (citing Fed. R. Crim. P.
11(e)(2)); United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991)
(citing Fed. R. Crim. P. 32 (d)). 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 Fed. R.
Crim. P. 32(e); United States v. Hyde, 117 S. Ct. 1630, 1634 (1997);
Moore, 931 F.2d at 248. "[A] `fair and just' reason . . . is one that
essentially challenges either the fairness of the Rule 11 proceeding
. . . or the fulfillment of a promise or condition emanating from the
proceeding." Lambey, 974 F.2d at 1394. We review the district
court's denial of the motion to withdraw the plea for an abuse of dis-

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cretion. See United States v. Wilson, 81 F.3d 1300, 1305 (4th Cir.
1996).

In order to abuse its discretion, a district court must either fail or
refuse to exercise its discretion, or rely on an erroneous legal or fac-
tual premise in the exercise of its discretionary authority. See James
v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993). In this case, there is no
evidence of an abuse of discretion apparent from the record and John-
son has identified none. The district court did not rely on an erroneous
legal or factual premise to exercise its discretion in denying the
motion. Generally, courts consider six factors in determining whether
to permit the withdrawal of a guilty plea: (1) whether the defendant
offered credible evidence that the plea was not knowing or voluntary;
(2) whether the defendant credibly asserted his legal innocence; (3)
the length of delay between the entry of the plea and the filing of the
motion to withdraw; (4) whether the defendant had the assistance of
effective counsel; (5) whether withdrawal would prejudice the gov-
ernment; and (6) whether withdrawal would inconvenience the court
or waste judicial resources. See Moore, 931 F.2d at 248.

In attempting to show an abuse of discretion on the part of the dis-
trict court, Johnson states only that, on the balance, the Moore criteria
weighed in favor of withdrawing the plea. Johnson's mere disagree-
ment with the district court's conclusions does not amount to an abuse
of the court's discretion. The district court considered the voluntari-
ness of the plea in light of the thorough Rule 11 hearing conducted
before the plea was accepted. In the absence of an abuse of discretion,
we find no cause to disturb the district court's ruling.

Finally, Johnson's argument that the Government breached the plea
agreement by failing to move for a downward departure based on sub-
stantial assistance is similarly without merit. The plea agreement pro-
vides that the determination was within the "sole discretion" of the
Government. See United States v. Wallace, 22 F.3d 84, 87 (4th Cir.
1994). As a result of this discretion, the decision not to file a § 5K1.1
motion is not reviewable unless the Government either based its deci-
sion upon an unconstitutional factor or if the Government's reasoning
is not rationally related to a legitimate government objective. See
Wade v. United States, 504 U.S. 181, 185-87 (1992). In this case, the
Government determined that Johnson had not provided substantial

                     4
assistance because he was unwilling to testify against his alleged
accomplice. As a result of his recalcitrance, the Government con-
cluded that Johnson would not have made an effective witness, and,
as a result, did not provide substantial assistance. Johnson has made
no credible assertion, either in the district court or on appeal, that the
Government's decision not to file a § 5K1.1 motion was either irratio-
nal or impermissibly motivated. Accordingly, that discretionary deter-
mination is not reviewable. See id.

Finding no merit to Johnson's challenges to his conviction and sen-
tence, we affirm. 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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