* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 18 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JOSE MIGUEL VASQUEZ-LEBRON, Defendant - Appellant. No. 03-3262 (D.C. No. 02-CR-10053-MLB)

(D. Kan.)

ORDER AND JUDGMENT *

Before KELLY , HENRY , and TYMKOVICH , Circuit Judges. **
Defendant-Appellant Jose Miguel Vasquez-Lebron appe als from his plea and sentence for possession with intent to distribute. He argues the district court erred when it refused to allow him to withdraw his plea of guilty and proceed to trial. Our jurisdiction arises under 28 U.S.C. § 1 291, and we affirm. On April 1, 2002, Mr. Vasquez-Lebron was stopped bythe Kansas Highway- 2 -

Patrol in Thomas County, Kansas for a traffic violation. He gave the trooper permission to search the vehicle, and the trooper d iscovered a false compartment containing approximately ten kilograms of cocaine. Mr. Vasquez-Lebron admitted that he knew about the cocaine and was dri ving it to New York to distribute it. Mr. Vasquez-Lebron was indicted on April 9, 2002 on one count of possession of more than five kilograms of cocaine w ith the intent to distribute in violation of 21 U.S.C. § 841(a)(1). R. Doc. 1. Prior to his plea, Mr. Vasquez-Lebron objected to h is counsel’s representation and a new attorney was appointed. H e pleaded guilty to the charge in the indictment on September 9, 2002, admitting t o the facts as stated above. At his scheduled sentencing hearing on April 21, 2003, the court considered a letter from Mr. Vasquez-Lebron in which he complained about his present counsel’s representation. He requested a new attorney and wi shed to withdraw his guilty plea. A new attorney was appointed with regard to his request to withdraw his plea and a mental health evaluation was conducted. Mr. Vasquez-Lebron was found competent to stand trial and he filed a forma l pro se motion to withdraw his guilty plea on June 3, 2003. R. Doc. 49. The court heard arguments on the motion and testimo ny by Mr. VasquezLebron on August 18, 2003. Mr. Vasquez-Lebron test ified he believed the stop was impermissibly based on racial profiling. He st ated that an undercover police- 3 -

officer slowed in front of him, causing him to tail gate so he could be pulled over for a traffic violation. Mr. Vasquez-Lebron assert ed his attorneys had refused to file a motion to suppress the evidence regarding th e traffic stop despite his continued requests. The court denied the motion to withdraw his plea and proceeded to sentence Mr. Vasquez-Lebron to seventymonths in prison. Mr. Vasquez-Lebron has filed this appeal, challengi ng the district court’s denial of his motion to withdraw his guilty plea. Federal Rule of Criminal Procedure 11(d) provides in pertinent part that, “a fter the court accepts the plea, but before it imposes sentence,” a defendant may wi thdraw a plea of guilty if “the defendant can show a fair and just reason for reque sting the withdrawal.” A defendant does not have an absolute right to withdr aw a guilty plea once accepted by the court, United States v. Siedlik , 231 F.3d 744, 748 (10th Cir. 2000); it is up to the “sound discretion of the trial court to dete rmine what circumstances justify the granting of a motion to withdraw the plea.” Bu rnett v. United States , 404 F.2d 29, 29 (10th Cir. 1968). “We review a distric t court’s denial of a motion to withdraw a guilty plea for abuse of discretion, andwe will not reverse unless the defendant can show that the court acted unjustly orunfairly.” United States v. Gordon , 4 F.3d 1567, 1572-73 (10th Cir. 1993). The defendant carries the burden of establishing t hat there is a fair and just reason to allow a withdrawal of a guilty plea. Id. at 1572. The Tenth Circuit has- 4 -

articulated the following seven factors to guide th e courts in determining whether a defendant has met this burden: “(1) whether the d efendant has asserted his innocence, (2) prejudice to the government, (3) del ay in filing defendant’s motion, (4) inconvenience to the court, (5) defenda nt’s assistance of counsel, (6) whether the plea is knowing and voluntary, and (7) waste of judicial resources.” Id. After considering these factors, the district cou rt determined Mr. VasquezLebron failed to show a fair and just reason for wi thdrawing his plea. R. Doc. 65 at 17-24. Mr. Vasquez-Lebron asserts that “he was not satisfi ed with his counsel at the time of his plea and that he felt intimidated b y that counsel into entering the guilty plea.” Aplt. Br. at 6. It is true, as Mr. Vasquez-Lebron asserts, that the “record is replete . . . with defendant’s complaint s about the performance of his court appointed counsel.” Id. at 7. It is also true that the government did not oppose the withdrawal. However, with regard to Mr. Vasquez-Lebron’s theory regarding the police and the quality of his attorne ys’ representations, the district court concluded that Mr. Vasquez-Lebron’s assertion s were not credible. R. Doc. 65 at 22. See United States v. Gobey , 12 F.3d 964, 967 (10th Cir. 1993) (“Credibility determinations are within the sound d iscretion of the trial judge . . . .”). Even if Mr. Vasquez-Lebron’s testimony is considere d, there is insufficient- 5 -

evidence that any alleged ineffectiveness resulted in prejudice. See Hill v. Lockhart , 474 U.S. 52, 58 (1985) (To show prejudice in the guilty plea context, a defendant must show “there is a reasonable probabil ity that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”). The judge engaged in an extensive discus sion with Mr. Vasquez-Lebron at the time of his plea, including questioning rega rding any potential motion to
suppress: Court: Do you understand that by pleading guilty i n this case that you’re giving up any right that you would have had to file any kind of motion to suppress your statement, to challenge the stop and the search of the vehicle or anything else? Defendant: Yes, Your Honor, I understand. Court: You understand that? Defendant: Yes, Your Honor. R. Doc. 47 at 17. Given the court’s discussions pr ior to accepting the plea, any allegation on Mr. Vasquez-Lebron’s part, that but f or the intimidation on the part of his counsel, he would have insisted on going to trial, is insufficient to establish prejudice. See Gordon , 4 F.3d at 1571. Considering the extensive plea c olloquy in this case, the district court properly concludedMr. Vasquez-Lebron’s plea was knowing and voluntary. R. Doc. 47 at 18. Mr. Vasquez-Lebron has not asserted his innocence, and he admitted at the time of his plea that he possessed the drugs and intended to distribute them. He- 6 -

also delayed for almost a year after the plea was e ntered before moving for its withdrawal. Given the court’s consideration of the Gordonfactors and the facts before us, we are satisfied the district court’s co nclusion was not an abuse of discretion. See United States v. Black , 201 F.3d 1296, 1300 (10th Cir. 2000). AFFIRMED. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge