The Honorable Donald D. Alsop, United States District Judge 1

for the District of Minnesota, sitting by designation.

 The Honorable D. Brook Bartlett, Chief United States District 2

Judge for the Western District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

________

No. 96-3093

________

United States of America, *

 *

Appellee, *

 *

v. * Appeal from the United 

 * States District Court for

Roosevelt D. Vallery, * the Western District of 

 * Missouri. 

Appellant. *

_________

Submitted: January 14, 1997

Filed: February 24, 1997 

_________

Before RICHARD S. ARNOLD, Chief Judge, BEAM, Circuit Judge, and

ALSOP, District Judge. 1

_________

ALSOP, District Judge. 

Roosevelt D. Vallery appeals the district court’s denial of

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his motion to withdraw his guilty plea. Because this Court is

convinced the district court did not abuse its discretion in

denying Vallery’s motion, we affirm.
 The court subsequently dismissed Count II, use of a firearm in 3

relation to a drug trafficking offense, based on the Supreme

Court’s decision in United States v. Bailey,116 S.Ct. 501 (1995). 

On January 3, 1995, Appellant Roosevelt D. Vallery was named

in a two count indictment charging possession with intent to

distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(A) (Count I) and use of a firearm in relation to a drug

trafficking offense in violation of 18 U.S.C. § 924(c)(1) (Count

II). Vallery pleaded not-guilty to both offenses.

After several continuances, a substitution of counsel at

Vallery’s request, and a court-ordered mental examination of

Vallery, the district court, Senior Judge Elmo B. Hunter presiding,

scheduled the case for trial on December 4, 1995. On November 22,

1995 and December 1, 1995, Vallery brought motions to have yet

another new attorney appointed. Vallery claimed his appointed

attorney failed to adequately represent him. The district court

denied both motions. 

On the day of trial, Vallery asked the district court to allow

him to retain his own counsel. The district court refused this new

request, and indicated that the trial would go forward as planned.

Following voir dire, and pursuant to a plea agreement, Vallery

changed his plea to Count I, possession with intent to distribute

cocaine base, and to Count II, use of a firearm in relation to a

drug trafficking offense, to guilty.3

On April 12, 1996, Vallery filed a Rule 32(d) motion to 
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withdraw his guilty plea to Count I. Vallery argued that the

court’s refusal to allow him to retain counsel on the day of trial

violated his right to counsel, and therefore created a fair and

just reason to withdraw his guilty plea. The district court denied

Vallery’s motion. The court then sentenced Vallery to 360 months

incarceration. This direct appeal followed.

Rule 32(d) of the Federal Rules of Criminal Procedure allows

withdrawal of a guilty plea before sentencing “upon a showing by

the defendant of any fair and just reason.” To determine whether

the defendant has met that standard, a court may look at such

factors as:

(1) whether defendant established a fair and

just reason to withdraw his plea; (2) whether

defendant asserts his legal innocence of the

charge; (3) the length of time between the

guilty plea and the motion to withdraw; and

(4) if the defendants established a fair and

just reason for withdrawal, whether the

government would be prejudiced.

See, e.g., United States v. Boone, 869 F.2d 1089, 1091-92 (8th Cir.

1989), cert. denied, 493 U.S. 822, 110 S.Ct. 81, 107 L.Ed.2d 47

(1989). The Court of Appeals will not reverse a district court’s

denial of a motion to withdraw a guilty plea unless it finds the

district court abused its discretion. See United States v. Jagim,

978 F.2d 1032, 1036 (8th Cir. 1992), cert. denied, 508 U.S. 952,

113 S.Ct. 2447, 124 L.Ed.2d 664 (1993).

Vallery claims the district court erred by denying his motion
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to withdraw his guilty plea because his motion was supported by a

“fair and just reason” and meets the other criteria for granting

such a motion. The fair and just reason asserted by Vallery is

that he was forced to plead guilty to avoid going to trial with

counsel he did not believe would zealously represent his interests

after the District Court violated his right to choice of counsel.

A trial court has broad discretion in determining whether to

grant a continuance or a request for substitution of counsel,

particularly when the issue is raised close to the date of trial.

See, e.g., United States v. Issaghoolian, 42 F.3d 1175, 1177-78

(8th Cir. 1994); United States v. Gallop, 838 F.2d 105, 108 (4th

Cir. 1988), cert denied, 487 U.S. 1211, 108 S.Ct. 2858, 101 L.Ed.2d

895 (1988); United States v. Lankford, 573 F.2d 1051, 1054 (8th

Cir.1978). “Only an unreasoning and arbitrary insistence upon

expeditiousness in the face of a justifiable request for delay

violates the right to assistance of counsel.” Urquhart v.

Lockhart, 726 F.2d 1316, 1319 (8th Cir. 1984). Similarly, while an

accused who is financially able to retain counsel of his own

choosing must not be deprived of a reasonable opportunity to do so,

the right to retain counsel of one’s choice is not absolute. See

Urquhart, 726 F.2d at 1319. The right to choice of counsel must

not obstruct orderly judicial procedure or deprive courts of their

inherent power to control the administration of justice. See

United States v. Gallop, 838 F.2d 105, 108 (4th Cir. 1988). If a

defendant’s “attempted exercise of his choice is dilatory, the

trial court can require him to proceed with designated counsel.”

United States v. Reeves, 674 F.2d 739, 748 (8th Cir. 1982).
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This Court has held on facts strikingly similar to these that

a defendant is not always entitled to a continuance for the purpose

of retaining new counsel. In United States v. Lankford, 573 F.2d

1051 (8th Cir. 1978), the defendants moved for a continuance on the

day of trial for the purpose of hiring new counsel. This Court

ruled that the District Court had not abused its discretion by

refusing to grant the defendants’ motion. Id. at 1054. 

Similarly, in Urquhart v. Lockhart, 726 F.2d 1316 (8th Cir.

1984), the defendant claimed he was denied effective assistance of

counsel when the trial court denied his motion for a continuance.

The defendant claimed that his mother was willing to pay for

retained counsel. Id. at 1319. However, the defendant had over

two and one half months to retain counsel between the date of his

arrest and the time of trial, and had moved for the continuance on

the day of trial. Id. This Court found based on the circumstances

that the trial court had not violated the right to counsel by

denying the motion for a continuance. Id.

Finally, in United States v. Reeves, 674 F.2d 739 (8th Cir.

1982), the defendants brought a motion for a continuance the day

before trial. The trial court denied the motion for a continuance.

Id. at 748. Once again, this Court ruled that the District Court’s

denial of the motion was not an abuse of discretion and

specifically found that “the district court was in a good position

to weigh the need for a change in counsel and the inconvenience to

the litigants, the witnesses, other counsel and the court arising

from the belated request for a continuance.” Id.
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Here, the district court clearly did not violate Vallery’s

right to counsel. Therefore, Vallery can not show a “fair and just

reason” to support his motion to withdraw his guilty plea. 

The other factors a court may look at when determining whether

to grant a motion to withdraw a guilty plea also weigh against

Vallery. First, nowhere does Vallery assert legal innocence. In

addition, over four months had passed between Vallery’s guilty plea

and his motion to withdraw his guilty plea. Although these facts

are not necessary to decide whether Vallery can show a “fair and

just reason” for his motion to withdraw, they support the District

Court’s decision to deny Vallery’s motion. Vallery has failed to

meet the standard for granting a motion to withdraw a guilty plea

articulated in Rule 32(d). Accordingly, the District Court’s order

is AFFIRMED.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.