UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4770

JAMES EARL LINDSEY,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Greenville.

G. Ross Anderson, Jr., District Judge.

(CR-96-858)

Submitted: September 22, 1998

Decided: October 19, 1998

Before WILKINS and NIEMEYER, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Charles Benjamin Patterson, PATTERSON LAW FIRM, P.A.,

Greenville, South Carolina, for Appellant. J. Rene Josey, United

States Attorney, Harold Gowdy, III, Assistant United States Attorney,

Greenville, South Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

James Earl Lindsey (Lindsey) appeals his conviction and 262-

month sentence received after pleading guilty to one count of possession with intent to distribute cocaine and cocaine base (crack) in violation of 21 U.S.C. § 841(a)(1) (1994). Finding no reversible error, we

affirm.

While investigating another matter, Detective Riggs (Riggs) and

Detective Evatt (Evatt) saw Lindsey operating a 1989 Honda. The

two followed Lindsey to ascertain his home address because they had

been informed that Lindsey distributed cocaine in the area. Lindsey

eventually stopped his vehicle in front of an abandoned apartment and

exited his vehicle. The detectives pulled up in front of Lindsey's vehicle, approached Lindsey, and asked if they could see some identification. The detectives saw a plastic bag protruding from Lindsey's pants

which created a noticeable bulge in his pants. Riggs asked Lindsey

what was in the bag and then reached over and pulled out a bag containing four bags of cocaine. After Lindsey was placed under arrest,

he admitted that he had more drugs hidden in his pants and pulled out

a bag containing crack cocaine.

Lindsey filed a motion to suppress the introduction of the controlled substances and his statements. This motion was subsequently

denied. Thereafter, the court conducted an extensive Fed. R. Crim. P.

11 colloquy at which Lindsey was represented by counsel. Lindsey

then entered an unconditional guilty plea to one count of possession

with intent to distribute cocaine and crack cocaine.

Eight weeks later Lindsey filed a motion to withdraw his guilty

plea. Lindsey later withdrew this motion. Approximately four months

later, Lindsey filed a second motion to withdraw his guilty plea. Lindsey argued that his plea was not knowing and voluntary because he

 2
was in a state of shock and did not fully understand the consequences

of his plea. After conducting a motion hearing the district court

denied the motion. The court took note of the fact that Lindsey

answered the questions at the plea hearing intelligently and honestly

without displaying any signs of a medical problem and that Lindsey

had previously come before the court on a motion to withdraw his

guilty plea and asked the court to ignore the motion and move forward with sentencing. The court held that Lindsey failed to show that

his plea was in any way involuntary. Lindsey subsequently received

a 262-month sentence and filed a timely appeal.

Lindsey contends that the district court improperly denied his

motion to suppress. We decline to review the merits of the district

court's denial of Lindsey's motion to suppress the introduction of the

controlled substances and statements made by Lindsey. By pleading

guilty without reserving his right to appeal under Fed. R. Crim. P.

11(a)(2), Lindsey is foreclosed from appealing antecedent nonjurisdictional errors, including the denial of a motion to suppress evidence. See Tollett v. Henderson, 411 U.S. 258, 267 (1973); see also

United States v. Ford, 363 F.2d 375, 377 (4th Cir. 1966).

Lindsey also contends that the district court erred in denying his

motion to withdraw his guilty plea. We disagree. Withdrawal of a

guilty plea is not a matter of right. See United States v. Ewing, 957

F.2d 115, 119 (4th Cir. 1992). The decision whether to grant a motion

for withdrawal is committed to the district court's discretion. See

United States v. Puckett, 61 F.3d 1092, 1099 (4th Cir. 1995) (citing

United States v. Lambey, 974 F.2d 1389, 1393 (4th Cir. 1992) (in

banc)). The factors to be considered include: (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 it will

inconvenience the court and waste judicial resources. Puckett, 61 F.3d

at 1099 (citing United States v. Moore, 931 F.2d 245, 248 (4th Cir.

1991)). The defendant has the burden of establishing a fair and just

reason for the withdrawal, even if the government has not shown it

 3
would be prejudiced by the withdrawal. See Fed. R. Crim. P. 32(e);

see also Lambey, 974 F.2d at 1393.

Lindsey's basis for withdrawal of his plea was that his plea was not

entered into knowingly, voluntarily, or intelligently. This contention

is belied by the record. The transcript from the colloquy between

Lindsey and the district court during the Rule 11 hearing amply supports the court's conclusion that Lindsey's guilty plea was knowingly

and voluntarily given. Lindsey responded to specific questions and

stated that he understood the charges, the plea agreement, the rights

he was waiving, and the maximum possible sentence he could

receive. The fact that Lindsey pled guilty along with several others in

a "group" plea does not result in a violation of Rule 11. See United

States v. Martinez-Martinez, 69 F.3d 1215, 1223 (1st Cir. 1995)

(holding that failure to address a defendant individually is not per se

reversible error); United States v. Hobson, 686 F.2d 628, 629 (8th Cir.

1982) (questioning defendants as a group permissible where the

responses were individual); United States v. Fels, 599 F.2d 142, 146

(7th Cir. 1979) (finding no reversible error in group questioning).

Lindsey responded intelligently and clearly to the court's questioning

and turned down the court's offer of individual questioning.

Furthermore, Lindsey has never asserted, credibly or not, his innocence, and there was an eight-week interval between the guilty plea

and Lindsey's first motion to withdraw his guilty plea and another

interval of four months between the first motion to withdraw and

Lindsey's second motion to withdraw his guilty plea. See United

States v. Craig, 985 F.2d 175, 178 (4th Cir. 1993) (finding that eightweek delay supports district court's denial of withdrawal motion).

Finally, Lindsey indicated under oath in the Rule 11 proceeding that

he was satisfied with his lawyer's representation and that his lawyer

had done everything he had requested. Consequently, we find that the

district court did not abuse its discretion in denying Lindsey's motion

to withdraw the plea.

Finally, Lindsey asserts that he received ineffective assistance of

counsel because counsel failed to advise him of his right to seek a

conditional plea under Rule 11(a)(2) and that counsel allowed him to

plead guilty to a defective indictment that was not properly signed by

a Government representative. "The rule in this circuit is that a claim

 4
of ineffective assistance should be raised in a 28 U.S.C. § 2255

motion in the district court rather than on direct appeal, unless the

record conclusively shows ineffective assistance." United States v.

Williams, 977 F.2d 866, 871 (4th Cir. 1992). Based on our review of

the record, there has been no such showing, and the claim is not properly before us.

Accordingly, we affirm Lindsey's conviction and sentence. 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 in the decisional process.

AFFIRMED

 5