UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                     No. 98-4058
JAMES EDWARD ELLERBE, a/k/a Jim,
a/k/a Ed,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(CR-97-100)

Submitted: January 12, 1999

Decided: February 11, 1999

Before LUTTIG, HAMILTON, and TRAXLER, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

J. Randolph Riley, J. RANDOLPH RILEY LAW FIRM, Raleigh,
North Carolina, for Appellant. Janice McKenize Cole, United States
Attorney, Anne M. Hayes, Assistant United States Attorney, John S.
Bowler, Assistant United States Attorney, Raleigh, North Carolina,
for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

James Ellerbe appeals his conviction and sentence following his
guilty plea to aiding and abetting the conspiracy to possess with the
intent to distribute and the distribution of cocaine base in violation of
18 U.S.C. § 2 (1994), and 21 U.S.C. § 846 (1994). We affirm.

Ellerbe asserts that the district court erred in denying his motion to
withdraw his guilty plea. This court reviews the district court's denial
of Ellerbe's motion to withdraw his guilty plea for an abuse of discre-
tion. See United States v. Craig, 985 F.2d 175, 178 (4th Cir. 1993).
A defendant does not have an absolute right to withdraw a guilty plea,
see United States v. Ewing, 957 F.2d 115, 119 (4th Cir. 1992), but
must present a "fair and just" reason. See Fed. R. Crim. P. 32(e). A
"fair and just reason" is one that "essentially challenges . . . the fair-
ness of the Rule 11 proceeding." United States v. Lambey, 974 F.2d
1389, 1394 (4th Cir. 1992). An appropriately conducted proceeding
pursuant to Fed. R. Crim. P. 11 raises a strong presumption that the
guilty plea is final and binding. Id. A district court should consider
the following factors in determining whether to allow a defendant to
withdraw his plea: (1) whether there has been a delay between the
guilty plea and the motion to withdraw; (2) whether the defendant has
had the assistance of competent counsel; (3) whether the defendant
has made a credible assertion of legal innocence; (4) whether there is
credible evidence that the guilty plea was not knowing and voluntary;
and (5) whether withdrawal will prejudice the government or will
cause inconvenience to the court and waste judicial resources. See
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). The defen-
dant bears the burden of establishing a fair and just reason even if no
prejudice to the government is shown. See Lambey , 974 F.2d at 1393-
94.

Application of the above factors supports the district court's refusal
to allow Ellerbe to withdraw his guilty plea. Ellerbe waited approxi-

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mately six weeks after pleading guilty before filing his motion. His
motion did not challenge the fairness of his Rule 11 hearing or make
an assertion of legal innocence, but instead focused on allegations that
counsel tricked and pressured him into pleading guilty. At his plea
hearing, however, Ellerbe had assured the district court that he was
pleading guilty of his own free will and that he was completely satis-
fied with counsel's performance. Therefore, his subsequent protests
about a deteriorating relationship with counsel were insufficient to
satisfy his burden of establishing a fair and just reason for withdraw-
ing his guilty plea, and the district court acted within its discretion in
denying his motion.

Ellerbe next contends that the district court erred by denying his
motion to replace counsel. "A defendant's right to have a lawyer of
his or her own choosing is an essential element of the Sixth Amend-
ment right to assistance of counsel." United States v. Mullen, 32 F.3d
891, 895 (4th Cir. 1994). The individual's right to have counsel of his
choosing, however, is not an absolute right. See id. Rather, the right
is circumscribed by the need for the orderly administration of justice.
The exercise of the right to counsel of choice may neither "obstruct
orderly judicial procedure" nor "deprive courts of the exercise of their
inherent power to control the administration of justice." United States
v. Gallop, 838 F.2d 105, 108 (4th Cir. 1988).

The denial of a motion to substitute counsel is reviewed under an
abuse of discretion standard. See id. To determine whether the district
court abused its discretion, courts generally consider three factors: (1)
the timeliness of the motion; (2) the adequacy of the court's inquiry
into the defendant's complaint; and (3) whether a total breakdown in
attorney/client communication had developed such that it prevented
the attorney from putting forth an adequate defense. See Mullen, 32
F.3d at 895. However, "[a] request for change in counsel cannot be
considered justifiable if it proceeds from a transparent plot to bring
about delay." United States v. Hanley, 974 F.2d 14, 17 (4th Cir. 1992)
(quoting Gallop, 838 F.2d at 108); see also United States v. Burns,
990 F.2d 1426, 1438 (4th Cir. 1993).

We find that the district court's thorough inquiry into Ellerbe's dis-
satisfaction with counsel and its consequent finding that Ellerbe's
requests to relieve counsel were a manipulative tactic, provided it

                     3
with a sufficient basis to deny Ellerbe's motion. See Hanley, 974 F.2d
at 17. Ellerbe's failure to show prejudice resulting from any break-
down of communication between him and counsel provides further
support for the district court's decision and defeats any alleged viola-
tion of his Sixth Amendment rights.

Ellerbe's contradictory testimony about his satisfaction with coun-
sel and his inability to articulate substantive fault with counsel's ser-
vices support the district court's finding that Ellerbe's repeated
requests for substitute counsel were a manipulative tactic. At Eller-
be's plea hearing, the district court questioned Ellerbe about his dis-
satisfaction with counsel. When faced with the district court's
unwillingness to accept his guilty plea on this basis, Ellerbe aban-
doned any pretense of dissatisfaction with counsel's services and
assured the court that he was freely and voluntarily pleading guilty.
One month later, Ellerbe did another about-face and filed a motion to
replace counsel in which he again launched conclusory allegations
about counsel's deficient performance. In rejecting this motion the
district court heard Ellerbe and Miller's testimony and discredited
Ellerbe's assertion that Miller pressured him to lie at his plea hearing.
The sincerity of Ellerbe's claimed dissatisfaction with counsel is fur-
ther undermined by Ellerbe's decision to decline the district court's
offer to grant him a continuance so that he could present his objec-
tions with the aid of the probation officer's independent review.

The record further suggests that any breakdown of communication
between Ellerbe and counsel did not prevent counsel from adequately
representing Ellerbe at sentencing. Counsel filed written objections
and a sentencing memorandum on Ellerbe's behalf, and competently
argued the objections to the district court. He was successful in
defeating the government's objection to the two level decrease based
on Ellerbe's minimal role in the offense. Moreover, on appeal Ellerbe
asserts only that the communication breakdown between him and
counsel made an adequate defense "unlikely," but does not assert that
he suffered prejudice from counsel's representation.

In light of the district court's finding that Ellerbe's expressions of
dissatisfaction with counsel was an attempt to manipulate the court
and the lack of any prejudice suffered from counsel's continued repre-

                     4
sentation, the district court did not err in refusing to award Ellerbe
new counsel.

Ellerbe's final claim is that the district court erred in attributing 1.5
kilograms of cocaine to him for sentencing purposes. The government
has the burden of proving by a preponderance of the evidence sen-
tencing factors, including the type and quantity of drugs for which a
defendant should be held accountable. See United States v. Estrada,
42 F.3d 228, 231 (4th Cir. 1993). In proving these factors, the govern-
ment may rely upon information found in a defendant's presentence
report unless the defendant affirmatively shows that such information
is inaccurate or unreliable. See United States v. Gilliam, 987 F.2d
1009, 1014 (4th Cir. 1993). Drug quantities attributable to persons
convicted of conspiring to distribute illegal drugs are determined by
examining "the quantity of narcotics reasonably foreseeable to each
conspirator within the scope of his agreement." United States v. Irvin,
2 F.3d 72, 78 (4th Cir. 1993); see also U.S. Sentencing Guidelines
Manual § 1B1.3(a)(1)(B) (1996). We review the district court's find-
ings on the amount of drugs for clear error. United States v.
McDonald, 61 F.3d 248, 255 (4th Cir. 1995).

Ellerbe's presentence report recommended holding him responsible
for 1.5 kilograms of cocaine because the protection and information
he afforded his coconspirators enabled them to distribute over four-
teen kilograms of cocaine during the course of the conspiracy. Ellerbe
did not present evidence challenging the accuracy of this amount. The
government, however, presented evidence that in the six years the
conspiracy existed Ellerbe had actual and constructive knowledge that
the drug dealers he was protecting sold far more than 1.5 kilograms
of cocaine. One of Ellerbe's coconspirators admitted to selling as
much as twelve kilograms during the course of the conspiracy, while
another admitted to selling over ten kilograms. On one occasion
Ellerbe discussed with a coconspirator the possibility of personally
purchasing a kilogram of cocaine. This evidence and the substantial
payments Ellerbe received from his coconspirators support the district
court's finding that Ellerbe could have reasonably foreseen the distri-
bution of 1.5 kilograms of cocaine during the course of the conspir-
acy.

We therefore affirm Ellerbe's conviction and sentence. We further
deny Ellerbe's motion to supplement the record on appeal. We dis-

                     5
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
could not aid the decisional process.

AFFIRMED

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