### The HONORABLE FERNANDO J. GAITAIN, JR., United States 1 

### District Judge for the Western District of Missouri. No. 95-3522

United States of America, * *

Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Donnie D. DeHart, * [UNPUBLISHED] * Defendant - Appellant. *

Submitted: December 10, 1996 Filed: February 26, 1997
Before FAGG, FLOYD R. GIBSON, and LOKEN, Circuit Judges.
PER CURIAM.
Appellant Donnie D. DeHart pleaded guilty to violating 21 U.S.C. §§ 841(a)(1), 846 (1994), by conspiring to manufacture and distribut e methamphetamine. The only issue in this appeal is whether the distric t court committed error when it denie d DeHart's motion to withdraw his plea

1 prior to sentencing. Because refusal of this request was clearly within the court's discretion, we affirm.

I. BACKGROUND
On May 2, 1995, the district court accepted DeHart's plea of guilty to one count of consp iring to manufacture and distribute methamphetamine, a violation of 21 U.S.C. §§ 841(a)(1), 846.

### To justify retraction of a plea based on a desire to 2 

### present a defense at trial, the defendant must show that the defense was "previously unknown or unavailable." Cf. United States v. Morrison , 967 F.2d 264, 268 (8th Cir. 1992). This is an interesting standard to apply where, as here, the asserted defense was patently frivolous, and thus equally unavailable, both before and after the defendant filed the motion to withdraw. We merely note that we seriously question whether the PSI, as claimed, included information that was new to DeHart. 2 Almost four months later, but prior to his sentencing, DeHart filed with the court a motion to withdraw his plea. Underlying this request wa s DeHa rt's allegation that the Presentence Investigation Report ("PSI") , which he had received in late July, contained "new" information revealing that his former girlfriend, Kim Fletcher, was the confidential informant the Go vernment had consulted during its investigation. According t o DeHart , Fletcher was herself intimately involved in the illegal dru g distr ibution enterprise, and he wished to proceed to trial in order t o raise an e ntrapment defense based on her conduct. The district cour t denied the motion, and DeHart appeals that decision.

II. DISCUSSION

A crimin al defendant does not possess an absolute right to retrac t
a guilty plea prior to sentencing, but must instead demonstrate a "fair an d just reason" for the withdrawal. See Fed. R. Crim. P. 32(e); United State s
v. Capito , 992 F.2d 218, 219 (8th Cir. 1993). A district court's denial of a motion to withdraw is subject to review und er the abuse of discretion standard. See Capito , 992 F.2d at 219.

In this c ase, DeHart sought to withdraw his guilty plea in order to raise an e ntrapment defense at trial. It is evident, however, that this 2 defense would have be en wholly lacking in merit. A defendant is entitled to a jury instruction on entrapment only if he p roduces evidence that "(1) government agents implanted the

### 3

criminal d esign in his mind, and (2) government agents induced him t o commit the offense." United States v. Huff , 959 F.2d 731, 737 (8th Cir.),
cer t. denied , 506 U.S. 855 (1992). In his motion to withdraw, DeHar t completely failed to assert facts substantiating his ability to meet eithe r of these two elements . DeHart acknowledged under oath that he was not an unwilling participant in the criminal conspiracy, and it appears that he
wou ld have been able to show, at most, the unsurprising fact that th e confidential informant was "just as culpable" as he was. This falls far short of the sort of proof necessary to convince reasonable jurors tha t entrapment has occurred.

Bec ause DeHart could not, under the circumstances alleged, hav e prevailed on the proffered defense, he did not even begin to present the district court with a fair and just reason for withdrawing his plea. As such, the court did not abuse its discretion by denying DeHart's motion.

III. CONCLUSION

For the f oregoing reasons, we affirm the district court's denial of DeHart's motion to withdraw his guilty plea.

AFFIRMED.
A true copy.

Attest:

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