* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The 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. 

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

### MAR 26 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. DARRYLE ANTHONY JOLLEY, Defendant-Appellant. No. 02-1360 (D.C. No. 01-CR-250-N) (D. Colo.)

ORDER AND JUDGMENT *

Before TACHA , Chief Circuit Judge, McKAY and ANDERSON , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f). The case is therefore subm itted without oral argument. An indictment charged Mr. Jolley with four counts o f distributing a controlled substance and two counts of being a felo n in possession of a gun. On-2-

December 7, 2001, Defendant pled guilty to one count of violating the Armed Career Criminal Act by possessing a firearm subsequ ent to three previous convictions for a violent felony or serious drug of fense. 18 U.S.C. § 924(e)(1). The Government agreed to dismiss the remaining five counts of the indictment at sentencing. At the time of the plea, Defendant was represented by counsel. On March 13, 2002, two days before the scheduled se ntencing hearing, Defendant filed a motion to withdraw his guilty ple a pursuant to Federal Rule of Criminal Procedure 32(e), arguing that new evidence had come to his attention that would support an argument that his confession was procured through false promises of leniency. He further claimed that afte r he entered into the plea agreement he learned that a witness to the promises had been intimidated to remain silent by one of the agents. He stated that“his decision with regard to his plea would be different” in light of this informati on. Rec., Vol. 6, at 9. The district court held a hearing at which Defendant wa s permitted to testify and to produce evidence supporting his claims. Following the hearing, the district court denied Defendant’s motion and sentenced him to serv e 235 months in prison. Defendant appeals to this court. On appeal, Defendant claims that the district courterred in denying his motion to withdraw his guilty plea. We review the district court’s denial of a motion to withdraw a guilty plea for an abuse of di scretion. Barker v. United-3-

States , 579 F.2d 1219, 1223 (10th Cir. 1978). A defendant does not have an absolute right to withdraw his guilty plea prior to sentencing. Fed. R. Crim. P. 32(e); see also Mabry v. Johnson , 467 U.S. 504, 508-09 (1984). The defendant has the burden of proving a “fair and just reason” to withdraw his guilty plea pursuant to Rule 32(e). United States v. Burger , 964 F.2d 1065, 1070-71 (10th Cir. 1992) (citation omitted). We have articulated seven factors to be considered in our determination of whether a defendant has met the burden of establish ing “a fair and just reason” for withdrawing his guilty plea. United States v. Black , 201 F.3d 1296, 1299- 1300 (10th Cir. 2000); see also United States v. Gordon , 4 F.3d 1567, 1572 (10th Cir. 1993). These factors are: (1) whether the defendant has asserted his innocenc e; (2) whether the government will be prejudiced if the motion is granted; (3) whether the defendant has delayed in filing the motion; (4) the inconvenience to the court if the motion is granted; (5) the quality of the defendant’s assistance of counsel; (6) whether the plea was knowing and vo luntary; (7) whether the granting of the motion would cause a waste of j udicial resources. Black , 201 F.3d at 1299-1300 (10th Cir. 2000). Defendant’s argument that the district court failed to consider his legal innocence is unsupported by the record. The distri ct court considered Defendant’s allegation that information came to his attention after he entered his plea that might have assisted him in suppressing hi s confession. Our review of the record reveals that the district court granted Defendant a hearing to establish-4-

this evidence, considered all of the evidence, and rejected Defendant’s argument on the merits. After the hearing, the district cou rt determined that Defendant was unable to demonstrate that evidence existed in supp ort of his claim that the Government falsely promised leniency. Specifically , the witness to the alleged unfilled promises indicated at the hearing that she would invoke the Fifth Amendment if called to testify. Additionally, Defe ndant never asserted his innocence. He was represented by counsel when he e ntered into the plea agreement and he entered into the plea agreement fr eely and voluntarily. We cannot find fault with the district court’s analysi s of the other factors. Therefore, in light of the Gordonfactors and the facts of the instant case, we hold that the district court did not abuse its d iscretion in denying Defendant’s motion to withdraw his guilty plea. The conviction and sentence are AFFIRMED

. Entered for the Court

Monroe G. McKay Circuit Judge