UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4073

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DELEON HARATIO HOLMES,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Florence. Terry L. Wooten, District Judge.

(4:04-cr-00811-TLW)

Submitted: July 23, 2008 Decided: August 12, 2008

Before NIEMEYER, TRAXLER, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thurmond Brooker, BROOKER LAW FIRM, Florence, South Carolina, for

Appellant. Kevin F. McDonald, Acting United States Attorney, Rose

Mary Parham, Carrie A. Fisher, OFFICE OF THE UNITED STATES

ATTORNEY, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Pursuant to a plea agreement, Deleon Haratio Holmes pled

guilty to conspiracy to distribute and to possess with intent to

distribute five kilograms or more of cocaine, in violation of 21

U.S.C. § 846 (2000) (Count One), attempted robbery affecting

interstate commerce, in violation of 18 U.S.C. §§ 1951(a), 2 (2000)

(Count Two), and using and carrying a firearm during and in

relation to drug trafficking crimes and a crime of violence, in

violation of 18 U.S.C.A. § 924(c)(1)(A) (West 2000 & Supp. 2008)

and 18 U.S.C. § 2 (Count Three). The district court sentenced him

to 348 months in prison. Holmes appeals, claiming the district

court abused its discretion by denying his motion to withdraw his

guilty plea. Finding no abuse of discretion, we affirm.

We review the district court’s denial of a motion to

withdraw a guilty plea for abuse of discretion. United States v.

Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). A defendant does not

have an absolute right to withdraw a guilty plea, even before

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

1991). Rather, the defendant bears the burden of demonstrating

that a “fair and just reason” supports his request to withdraw his

plea. Id. In deciding whether to permit a defendant to withdraw

his guilty plea, the district court considers: 

(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 the defendant has had close assistance of

competent counsel, (5) whether withdrawal will cause

prejudice to the government, and (6) whether withdrawal
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will inconvenience the court and waste judicial

resources.

Id. 

Holmes received an adequate Fed. R. Crim. P. 11 hearing,

which creates a strong presumption that his guilty plea was final

and binding. United States v. Puckett, 61 F.3d 1092, 1099 (4th

Cir. 1995). Holmes argues, however, that his guilty plea was not

knowing and voluntary because the Government told him that he would

not be prosecuted on Counts Two and Three and his first attorney

assured him, even after he pled guilty to all three counts, that

the Government would not pursue Counts Two and Three. We find that

Holmes failed to offer “credible evidence that his plea was not

knowing or otherwise involuntary,” Ubakanma, 215 F.3d at 424, and

that his allegations are belied by his statements at the plea

hearing. See Blackledge v. Allison, 431 U.S. 63, 74 (1977)

(finding that statements made during plea hearing “carry a strong

presumption of verity”). Accordingly, we conclude that the

district court did not abuse its discretion by determining that

Holmes failed to present a fair and just reason to withdraw his

guilty plea.

We therefore affirm the judgment. 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