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.

Roos evelt D. Vallery appeals the district court’s denial o f 2 hi s motion to withdraw his guilty plea. Because this Court i s convin cedthe district court did not abuse its discretion i n 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 t wo count indictment charging possession with intent t o 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 dru g tra fficking offense in violation of 18 U.S.C. § 924(c)(1) (Coun t II). Vallery pleaded not-guilty to both offenses.

After several continuances, a substitution of counsel a t Val lery’s request, and a court-ordered mental examination o f Vallery, the district court, Senior Judge Elmo B. Hunter pre siding, scheduled the case for trial o n December 4, 1995. On November 22, 1995 and December 1, 1995, Vallery brought motions to have ye t
an other new attorney appointed. Vallery claimed his appointe d att orneyfailed to adequately represent him. The district cour t denied both motions.
On the day of trial, Vallery asked the district court to all ow him to retain his own counsel. The district court refused t his new request, and indicated that th e trial would go forward as planned. Following voir dire , and pursuant to a plea agreement, Valler y changed his plea to Count I, possession with intent to distribute
coca ine 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 to3

withdrawh is guilty plea to Count I. Vallery argued that th e court’s refusal to allow him t o retain counsel on the day of trial violatedhis right to counsel, and therefore created a fair an d 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 defend ant has met that standard, a court may look at suc h factors as:

(1) whether defendant established a fair an d just reason to withdraw his plea; (2) whether defendant asserts his legal innocence of th e charge ; (3) the length of time between th e guil typlea and the motion to withdraw; an d (4 ) if the defendants established a fair an d just reason for withdrawal, whether th e government would be prejudiced.

See, e.g. , United States v. Boone , 869 F.2d 1089, 1091-92 (8 th Cir. 1989) , cert. denied, 493 U.S. 822, 110 S.Ct. 81, 107 L.Ed.2d 4 7 (1989). The Court of Appeals will not reverse a district court’s denial of a motion to withdraw a guilty plea unless it finds th e district court abused its disc retion. 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 co urt erred by denying his motion4

to withdraw his guilty plea because his motion was supported by a “fair and just reason” and meets the other criteria for grantin g sucha motion. The fair and just reason asserted by Vallery i s that he was forced to plead guilty to avoid going to trial wit h counsel he did not believe wou ld 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 gra nt 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, 1177-7 8 (8thCir . 1994); United States v. Gallop , 838 F.2d 105, 108 (4t h 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 (8t h Ci r.1978). “Only an unreasoning and arbitrary insistence upo n expeditiousness in the face of a justifiable request for dela y vio lates the right to assistance of counsel.” Urquhart v

. Lockhart , 726 F.2d 1316, 1319 (8th Cir. 1984). Similarly, while an accusedwho is financially able to retain counsel of his ow n 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 Urquha rt , 726 F.2d at 1319. The right to choice of counsel mus t not obstruct orderly judicial procedure or deprive courts of their inh erent power to control the administration of justice. Se e United States v. Gallop , 838 F.2d 105, 108 (4th Cir. 1988). If a de fendant’s “attempted exercise of his choice is dilatory, th e tri al court can require him to proceed with designated counsel. ” United States v. Reeves , 674 F.2d 739, 748 (8th Cir. 1982).5

This Court has held on facts s trikingly 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 Cour t ruledthat the District Court had not abused its discretion by refusing to grant the defendants’ motion. Id. at 1054.

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

. 1984), the defendant claimed h e 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 fo r retained counsel. Id. at 1319. However, the defendant had ove r 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 circum stances that the t rial 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 da y before trial. The trial court denied the motion for a conti nuance. Id. at 748. Once again, this Court ruled that the District Court’s denial of the motion was not an abuse of discretion an d specifically found that “the d istrict 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.6

Here , the district court clearly did not violate Vallery’ s right to counsel. Therefore, Vallery can not show a “fair a nd just reason” to support his motion to withdraw his guilty plea.
The other factors a court may look at when determining wheth er to grant a motion to withdraw a guilty plea also weigh agains t Vallery. First, nowhere does Vallery assert legal innocence. In addition, over four months had passed between Vallery’s guil ty plea and his motion to withdraw his guilty plea. Although these facts
are not necessary to decide whether Vallery can show a “fair an d 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). Acc ordingly, the District Court’s order is AFFIRMED.

A true copy.

Attest:

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