UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4204

JACQUE ALSUP,

Defendant-Appellant.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Frederic N. Smalkin, District Judge.

(CR-96-192-S)

Submitted: November 25, 1997

Decided: January 15, 1998

Before HALL, WILKINS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William B. Purpura, Michael D. DeMartin, Baltimore, Maryland, for

Appellant. Lynne A. Battaglia, United States Attorney, Christina

Manuelian, Assistant United States Attorney, Baltimore, Maryland,

for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Jacque Alsup pled guilty to conspiracy to distribute and to possess

with intent to distribute heroin. At his arraignment, due to Alsup's

appearance, demeanor, and admissions, the district court directed that

Alsup be given a breathalyzer and urinalysis before the court would

accept the guilty plea. The tests revealed Alsup had a blood alcohol

content of .08 and that he had marijuana in his system. Accordingly,

the district court revoked Alsup's bail, ordered that he be taken into

custody to "sober up" before entering his plea, and rescheduled the

arraignment for the next morning.

Alsup entered his guilty plea the next morning pursuant to a plea

agreement with the Government, which Alsup had signed the day

before while under the influence of alcohol and marijuana. The plea

agreement contained a stipulation of facts, which the court used as the

basis for acceptance of the plea and drug quantity calculations. The

district judge engaged in a comprehensive Fed. R. Crim. P. 11 colloquy and then accepted Alsup's guilty plea.

At sentencing two months later, Alsup requested to withdraw his

plea because he alleged his attorney had incorrectly advised him that

his criminal history category would be a level IV, rather than the level

VI found by the probation officer. The district court denied Alsup's

motion, reduced his criminal history category to level V, and sentenced Alsup to 168 months imprisonment. Alsup timely noted an

appeal.

I

The denial of a motion to withdraw a guilty plea is reviewed for

an abuse of discretion. See United States v. Craig, 985 F.2d 175, 178

(4th Cir. 1993). Withdrawal of a guilty plea is not a matter of right.

See United States v. Hyde, ___ U.S. #6D 6D6D#, 65 U.S.L.W. 4369 (U.S.

May 27, 1997) (No. 96-667); United States v. Ewing, 957 F.2d 115,

119 (4th Cir. 1992). Under Fed. R. Crim. P. 32(d), Alsup needed to

provide the court a "fair and just reason" for withdrawal of his guilty

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plea. The court evaluates the proffered reason in light of: (1) whether

the plea was knowing and 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 close assistance of effective counsel; (5) whether

withdrawal would prejudice the government; and, (6) whether withdrawal would inconvenience the court or waste judicial resources. See

United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).

Alsup argued that he should have been allowed to withdraw his

guilty plea because he did not have effective assistance of counsel in

that his attorney failed to adequately prepare him for entrance of the

guilty plea. Specifically, Alsup alleges his attorney should not have

allowed him to sign the plea agreement while Alsup was under the

influence of alcohol and marijuana. Alsup also contends his attorney

was ineffective for erroneously advising him that his criminal history

score would be level IV, when the probation officer found it to be

level VI.

When the basis for a defendant's request to withdraw his plea is

poor advice from his attorney, he must show that his attorney's performance fell below an objective standard of reasonableness and that

there was a reasonable probability that, but for counsel's errors, he

would have pleaded not guilty and insisted on going to trial. See

United States v. DeFreitas, 865 F.2d 80, 82 (4th Cir. 1989). Counsel's

erroneous advice regarding the sentence range is not a basis for withdrawal of plea where the defendant was made aware of sentencing

uncertainty by the court. See United States v. Lambey, 974 F.2d 1389,

1395 (4th Cir. 1992) (in banc).

The record indicates that Alsup's impairment was not discovered

until he admitted in court that he had consumed two beers earlier that

morning. The record also reflects that Alsup had accepted the terms

of the Government's plea agreement on December 24, 1996, two

weeks before he actually signed the agreement. In addition, prior to

accepting the Government's offer, Alsup consulted with his trial attorney and a second attorney, who was brought in specifically to advise

Alsup on whether to accept the agreement. Finally, the district judge

conducted a very thorough Rule 11 hearing after Alsup "sobered up,"

reviewing the plea agreement with Alsup line-by-line. Thus, Alsup

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failed to establish that his attorney's performance was objectively

unreasonable. He also failed to establish a reasonable probability that

he would not have pled guilty and accepted the plea agreement if his

attorney had advised him against signing the agreement while Alsup

was impaired.

Alsup's contention that his attorney was ineffective because he

misled Alsup about his sentence by incorrectly estimating the criminal history score is also without merit. The district judge conducted

a very thorough Rule 11 hearing and advised Alsup several times of

the maximum penalty, that there was no agreement as to his criminal

history, that the court was not bound by any agreement between the

parties as to the sentence, and that no one could"give [Alsup] a binding prediction or promise as to exactly what sentence" Alsup would

receive. In addition, the court advised Alsup that he would not be able

to withdraw his guilty plea if the sentence were different from what

he expected, and Alsup admitted that no one had made any promises

or assurances on which he based his decision to plead guilty. Accordingly, the district court did not abuse its discretion in concluding that

Alsup's proffered "fair and just reason" for withdrawing his guilty

plea was inadequate.

II

Alsup argues that the district court erred when it accepted his guilty

plea when the factual basis for the plea was stipulated by Alsup when

he was impaired because of the alcohol and marijuana. This claim is

without merit.

Rule 11(f), Fed. R. Crim. P., requires the court to make inquiry and

satisfy itself that a factual basis exists for the plea. The district court

may find a factual basis for the plea "from anything that appears on

the record," and a signed statement of facts is sufficient. See United

States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991). A stipulated

factual statement was signed by Alsup and appended to the plea

agreement. Although the agreement was signed while Alsup was

impaired, the same factual statement had been accepted by Alsup two

weeks earlier. Furthermore, during the Rule 11 colloquy, Alsup

admitted that he conspired to distribute heroin in Baltimore and that

he could foresee the amount involved as between three and ten kilo-

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grams. He also admitted he knew his behavior was illegal and wrong.

Therefore, the district court properly found a factual basis for the

plea.

We affirm the district court's orders denying Alsup's motion to

withdraw his guilty plea and entering judgment against him pursuant

to a plea of guilty to conspiracy to distribute and to possess with

intent to distribute heroin, in violation of 21 U.S.C. § 846 (1994). 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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