UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                     No. 96-4864
LENZIE LEE MURRAY, JR., a/k/a
Pepsi,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, District Judge.
(CR-96-157)

Submitted: November 25, 1997

Decided: February 23, 1998

Before WIDENER, HALL, and WILKINS, Circuit Judges.

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Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

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COUNSEL

M. Gordon Tayback, Baltimore, Maryland, for Appellant. Helen F.
Fahey, United States Attorney, Thomas M. Hollenhorst, Assistant
United States Attorney, Alexandria, 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Unpublished opinions are not binding precedent in this circuit.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:

Lenzie Lee Murray, Jr., pled guilty to conspiracy to possess one
kilogram or more of heroin with intent to distribute, 21 U.S.C. § 846
(1994), but attempted to withdraw his plea before sentencing. Murray
appeals his 292-month sentence, alleging that the district court erred
in finding that he was a manager or supervisor in the offense, see
USSG § 3B1.1(b),1 based on statements he made which were pro-
tected under the cooperation provision of his plea agreement. See
USSG § 1B1.8. He also contends that the district court abused its dis-
cretion when it denied his motion to withdraw his guilty plea. We
affirm the conviction but vacate the sentence and remand to allow the
district court to reconsider the role adjustment.

I.

In January 1996, Murray was arrested for conduct comprising the
instant offense and released on bond. Shortly thereafter, in Murray's
presence, his attorney discussed a guilty plea with the government, a
plea agreement was prepared, and a change of plea hearing was
scheduled. Murray then asked for more time. Eventually, in June
1996, Murray entered a guilty plea. The plea agreement provided that
no information Murray supplied during cooperation with the govern-
ment would be used to enhance his sentence. In the Statement of
Facts attached to his plea agreement, Murray admitted that the gov-
ernment could prove that in September 1993, he recruited a courier
to fly to Moscow to obtain heroin supplied by a conspirator in Paki-
stan, that in December 1995 he possessed a handgun which was used
and possessed in connection with the conspiracy, and that he distrib-
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1 U.S. Sentencing Guidelines Manual (1995). Murray was sentenced in
October 1996.

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uted between ten and thirty kilograms of heroin during his participa-
tion in the conspiracy.2

The probation officer incorporated the Statement of Facts into the
offense conduct portion of the presentence report. The report recom-
mended that Murray was responsible for ten to thirty kilograms of
heroin, that he should receive a three-level adjustment for being a
manager or supervisor,3 and should receive an enhancement for pos-
session of a firearm during the offense. After the presentence report
was prepared, Murray contested the role enhancement. He also
obtained new counsel and moved to withdraw his guilty plea on the
day scheduled for sentencing in October 1996. His motion was
denied.

Under Fed. R. Crim. P. 32(d), a court may permit withdrawal of a
guilty plea before sentencing if the defendant shows a "fair and just"
reason for withdrawal. A fair and just reason is one which calls into
question the validity of the guilty plea. See United States v. Hyde, ___
U.S. ___, 65 U.S.L.W. 4369 (U.S. May 27, 1997) (No. 96-667). In
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991), we
explained that the factors most relevant to this test are whether the
defendant has offered credible evidence that his plea was not knowing
and voluntary or credibly asserted his innocence, whether there has
been a delay between the plea and the withdrawal motion, whether the
defendant has had close assistance of competent counsel, and whether
withdrawal would prejudice the government or inconvenience the
court.

Murray alleged that he had been rushed into the plea agreement by
his former attorney without adequate time to review the agreement.
He denied admitting that he distributed more than ten kilograms of
heroin. The government proffered that a Drug Enforcement Adminis-
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2 Murray also waived his right to appeal his sentence, but the govern-
ment does not oppose the appeal.
3 The probation officer recommended a 2-level adjustment, USSG
§ 3B1.2(c), in the body of the presentence report, but used a 3-level
adjustment, USSG § 3B1.1(b), on the worksheet. The 3-level adjustment
is correct because, as the district court found, the conspiracy was exten-
sive.

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tration agent would testify that Murray admitted distributing thirty
kilograms of heroin just after his arrest. Applying the Moore test, we
find that the factors weighed against granting the motion. Murray had
adequate time to consider his plea with the assistance of counsel. He
delayed five months before asking to withdraw the plea, and did not
assert innocence but concern with the sentence he might receive. The
district court thus did not abuse its discretion in denying the motion.

II.

At the sentencing hearing, with new counsel, Murray contested
only the role adjustment, alleging that the conspiracy was not exten-
sive and that recruitment of a courier was not sufficient to prove that
he had a managerial role. Murray argued that his admission that he
used four people to distribute heroin, made during post-plea inter-
views with federal agents and the probation officer, was protected by
the cooperation agreement. The district court held that the role adjust-
ment was warranted. The court found that USSG § 1B1.8 did not
apply because Murray had told the probation officer that he coordi-
nated four people who sold drugs for him. The court also found that
the conspiracy was extensive, as evidenced by Murray's recruitment
of a courier to go to Moscow for heroin.

We find that the court could not rely on Murray's statements to the
probation officer concerning his use of others to distribute heroin
because that information was protected under the cooperation provi-
sion of the plea agreement. See USSG § 1B1.8, comment. (n.5) (state-
ments to probation officer are covered by cooperation agreement).
Although the court later mentioned Murray's admission in the State-
ment of Facts that he had recruited a courier to obtain heroin in Mos-
cow, the court used this information only to find that the conspiracy
was extensive, not to shed light on Murray's role in the conspiracy.
We therefore vacate the sentence and remand for resentencing to per-
mit the district court to consider whether there is evidence to warrant
the adjustment apart from Murray's protected statements.4
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4 Murray does not specifically challenge the weapon enhancement
under USSG § 2D1.1(b)(1), but refers to it as an error in his discussion
of the role adjustment. The district court's finding concerning the
weapon is based on the Statement of Facts incorporated into the plea
agreement and the presentence report. Therefore, this finding need not be
reexamined.

                    4
Accordingly, we affirm Murray's conviction but vacate his sen-
tence and remand for resentencing to allow the district court to recon-
sider his role in the conspiracy. 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 IN PART, VACATED
          IN PART, AND REMANDED

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