                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                              NOV 20 2001
                                   TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                          No. 01-1120
 VINCENT FANNING,                                           No. 01-1142
                                                       (D.C. No. 97-CR-78-N)
          Defendant-Appellant.                                (D.Colo.)




                                ORDER AND JUDGMENT*


Before HENRY, BRISCOE and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

      Defendant Vincent Fanning appeals from the district court’s denial of his motion

to withdraw his guilty plea. We affirm.



      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       Fanning was originally indicted by a federal grand jury in the District of Colorado

on one count of conspiracy to possess with intent to distribute cocaine and cocaine base in

violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A), sixty counts of money

laundering in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2, and seven counts of

money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and 2. The indictment

also contained two forfeiture counts under 18 U.S.C. § 982 and one forfeiture count under

18 U.S.C. § 853.

       Fanning entered into a plea agreement whereby he agreed to plead guilty to one

count of conspiracy with intent to distribute cocaine and cocaine base and one count of

money laundering in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and 2. Fanning also

agreed to debrief agents and testify in any proceeding if necessary. The government

agreed to dismiss the remaining counts in the indictment. The government also agreed to

file a §5K1.1 motion to reduce Fanning’s sentence to a range of 120 to 150 months and to

recommend that the court sentence Fanning to 120 months. As part of the factual basis of

sentencing, the parties stipulated there was no provable conduct that Fanning had

possessed a firearm in connection with the offenses and that the base level of the offense

was predicated on 50 to 150 grams of cocaine. Sentencing was postponed pending the

issuance of indictments in connection with information provided by Fanning.

       Prior to sentencing, Fanning filed a motion to withdraw his plea, arguing his plea

was not knowingly and voluntarily made. He further argued that the government had


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breached the plea agreement by providing information indicating Fanning had in fact

possessed a firearm in connection with the offenses to the investigator compiling the

presentence report, and that the amount of drugs possessed was greater than stipulated.

The district court denied the motion to withdraw the plea, and ultimately sentenced

Fanning to 120 months in accordance with the plea agreement.

       We review the district court’s denial of a motion to withdraw a guilty plea under

an abuse of discretion standard. U.S. v. Siedlik, 231 F.3d 744, 748 (10th Cir. 2000). We

will not reverse absent a showing that the district court acted unjustly or unfairly. Id.

       Fanning first contends the district court erred in finding that his plea was made

knowingly and voluntarily. He argues that, at the time he entered his plea, he was under

the influence of alcohol and marijuana, was coerced by his attorney into entering the plea,

and did not realize he was pleading guilty to conspiracy with intent to distribute cocaine

base. In its oral rulings, the district court addressed each of the factors set forth in United

States v. Kramer, 168 F.3d 1196, 1202 (10th Cir. 1999), in determining whether Fanning

had shown a fair and just reason to be permitted to withdraw his plea pursuant to Federal

Rule of Criminal Procedure 32(e). The government has quoted from the court's rulings in

its appellate brief. See Br. at 10-14. We have carefully examined the entire record in

conjunction with Fanning’s arguments, and conclude that the district court did not err in

finding his plea was knowing and voluntary.

       Fanning also contends he should have been allowed to withdraw his guilty plea


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because the government breached the terms of the plea by providing information

indicating Fanning had in fact possessed a firearm in connection with the offenses to the

investigator preparing the presentence report, and that the amount of drugs possessed was

greater than stipulated. Fanning argues this information exposed him to a greater range of

punishment than that agreed to in the plea agreement. We need not determine whether

the government’s conduct violated the plea agreement. The district court ultimately

accepted the plea agreement and sentenced Fanning to the recommended 120 months. As

a result, any alleged improper conduct by the government had no effect on Fanning’s

sentence and provided no basis for the withdrawal of his guilty plea.

       AFFIRMED.

                                                 Entered for the Court

                                                 Mary Beck Briscoe
                                                 Circuit Judge




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