                                              Filed:   March 14, 2012

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4543
                         (3:08-cr-00215-FDW-1)


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

JAMES DARNELL WINTONS,

                Defendant - Appellant.



                               O R D E R


           The Court amends its opinion filed March 8, 2012, as

follows:

           On page 3, first full paragraph, line 5 -- “factual

innocence” is corrected to read “factual guilt.”

                                        For the Court – By Direction

                                           /s/ Patricia S. Connor
                                                     Clerk
                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4543


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES DARNELL WINTONS,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:08-cr-00215-FDW-1)


Submitted:   February 24, 2012            Decided:   March 8, 2012


Before SHEDD, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Henderson Hill, Executive Director, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Heather H. Martin, Matthew Segal,
Assistant Federal Defenders, Asheville, North Carolina; Peter S.
Adolf, Assistant Federal Defender, Charlotte, North Carolina,
for Appellant.     Anne M. Tompkins, United States Attorney,
Melissa L. Rikard, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           James Darnell Wintons pled guilty to possession of a

firearm by a convicted felon and was sentenced to 184 months’

imprisonment.       He appeals his conviction, asserting that the

district court abused its discretion in denying his motion to

withdraw his guilty plea based on his contention that his prior

attorney   failed    to   discuss    a    possible         defense      with   him   and

failed to move to suppress the weapons.                     We find no abuse of

discretion and therefore affirm Wintons’ conviction.

           “A   defendant    has    no       absolute      right       to   withdraw    a

guilty plea.”       United States v. Bowman, 348 F.3d 408, 413 (4th

Cir. 2003) (internal quotation marks omitted).                     Rather, once the

district court has accepted a guilty plea, it is within the

district   court’s     discretion        whether      to    grant       a   motion     to

withdraw it based on the defendant’s showing of a “fair and just

reason.”   Fed. R. Crim. P. 11(d)(2)(B); United States v. Battle,

499 F.3d 315, 319 (4th Cir. 2007).

           When     considering     whether      to     allow      a    defendant      to

withdraw a guilty plea, the trial court must conduct a six-

factor analysis:

          (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

                                         2
      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)

Although all of the Moore factors should be considered, the key

one   is   whether    the      Rule    11   hearing      was    properly      conducted.

Bowman, 348 F.3d at 414.               Thus, this court closely scrutinizes

the Rule 11 colloquy and attaches a strong presumption that the

plea is final and binding if the Rule 11 proceeding is adequate.

United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992).

             Addressing         these       factors,        the      district        court

determined that Wintons made no claim that he did not understand

the   plea      hearing   or    that    his       participation      in     the   Rule   11

hearing was other than voluntary.                  The district court found that

Wintons never denied his factual guilt.                     Rather, he claims that

he would have filed a motion to suppress evidence if he had been

properly advised.           However, suppression of evidence does not

amount to legal innocence.              See United States v. Sparks, 67 F.3d

1145, 1153 (4th Cir. 1995); Vasquez v. United States, 279 F.2d

34, 36-37 (9th Cir. 1960).

             Addressing the next Moore factor, the district court

found that the “many, many months” between the plea and the

motion     to    withdraw      amounted       to     a   significant         delay    that

prejudiced the government’s ability to try the case.                          We find no

clear error in this determination.                   See United States v. Suter,

                                              3
755 F.2d 523, 525 (7th Cir. 1985) (reviewing factual findings in

support of denial of motion to withdraw plea for clear error).

            Despite Wintons’ assertion that he did not have the

close assistance of competent counsel, the district court found

that, at the time of the entry of his plea, Wintons had the

close assistance of competent counsel.                            The court based this

finding on Wintons’ sworn statements during the Rule 11 hearing

as to his satisfaction with counsel and that he had discussed

possible defenses with counsel.                      Moreover, the record of the

plea    withdrawal        hearing      shows       that        Wintons     and    his    former

attorney discussed a suppression motion and made the strategic

decision    not     to    file   the    motion       to        suppress,    but       rather   to

cooperate in the hope of being granted a sentence below the

statutory    minimum.            We    conclude       that        the    district       court’s

finding    that     Wintons      had    the        close       assistance        of   competent

counsel is not clearly erroneous.                     See Suter, 755 F.2d at 525;

Blackledge     v.        Allison,      431     U.S.        63,     74    (1977)        (“Solemn

declarations      in      open    court       carry        a    strong     presumption         of

verity.”).

            In conclusion, we have determined that the district

court properly weighed the Moore factors and did not abuse its

discretion in denying Wintons’ motion to withdraw his guilty

plea.     Accordingly, we affirm the district court’s denial of the

motion to withdraw the plea and affirm Wintons’ conviction.                                    We

                                               4
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




                                    5
