UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4659

MARK ANTHONY BECKFORD,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Bluefield.

David A. Faber, District Judge.

(CR-95-174)

Submitted: January 13, 1998

Decided: January 30, 1998

Before ERVIN and WILLIAMS, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Gordon Widenhouse, Assistant Federal Public Defender, Raleigh,

North Carolina, for Appellant. Rebecca A. Betts, United States Attorney, John C. Parr, Assistant United States Attorney, Charleston, West

Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Mark Anthony Beckford appeals his conviction after a guilty plea

to knowingly conspiring to distribute and to possess with intent to distribute cocaine base and hydromorphone in violation of 21 U.S.C.

§ 846 (1994). Beckford claims that the district court abused its discretion in denying his motion to withdraw his guilty plea and clearly

erred in attributing 1309 grams of cocaine base to him for sentencing

purposes. Finding no abuse of discretion and no clear error, we

affirm.

First, Beckford claims that the district court abused its discretion

in denying his motion to withdraw his guilty plea because he now

asserts for the first time that his guilty plea was not entered into

knowingly. In fact, before the district court during the hearing of his

motion to withdraw his plea, Beckford expressly disavowed this as a

basis for his motion. (J.A. at 174). On appeal Beckford contends that

his plea was unknowing because his attorney did not advise him that

after the Government dropped the charge of aiding and abetting the

possession with intent to distribute cocaine base, the evidence was

insufficient to convict him on the conspiracy count. We disagree.

This court reviews a district court's decision on a motion to withdraw a guilty plea for abuse of discretion. See United States v.

Lambert, 994 F.2d 1088, 1093 (4th Cir. 1993). We find that the district court did not abuse its discretion in concluding that the defendant

failed to show a "fair and just" reason sufficient to permit the withdrawal of his guilty plea. See United States v. Moore, 931 F.2d 245,

248 (4th Cir. 1991); see also Fed. R. Crim. P. 32(d). Our review of

the record discloses ample support for the district court's findings that

Beckford's guilty plea was knowingly and voluntarily entered, that

Beckford did not credibly assert his legal innocence, that there was

a delay between the entering of the plea and the filing of the motion,

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and that Beckford had the close assistance of competent counsel. To

the extent that Beckford now contends that his plea was unknowing

because his attorney did not adequately advise him on the alleged

insufficiency of the evidence against him, we conclude that he has

failed to show attorney ineffectiveness. See United States v.

DeFreites, 865 F.2d 80, 82 (4th Cir. 1989). During his plea hearing

the Government forecast considerable evidence against Beckford

apart from the evidence related to the aiding and abetting count of his

indictment. Additionally, because we find that his plea was voluntary

and intelligent, Beckford may not, after pleading guilty, attack the

factual foundation of the indictment. See United States v. Willis, 992

F.2d 489, 490 (4th Cir. 1993).

Next, Beckford asserts that the district court clearly erred in finding

that the 1309 grams of cocaine base retrieved from the November

1995 shipment was attributable to him for sentencing purposes. Specifically, Beckford claims that such a large amount of cocaine base

was not reasonably foreseeable to him and not within the scope of his

agreement. To attribute to Beckford for sentencing purposes the acts

of others in jointly-undertaken criminal activity, these acts must have

been within the scope of his agreement and must have been reasonably foreseeable to him. See U.S. Sentencing Guidelines Manual

§ 1B1.3, comment. (n.2) (1995). If the amount of attributable drugs

is in dispute, the district court must make an independent resolution

of the factual issue at sentencing and the Government must establish

the amount by a preponderance of the evidence. See United States v.

Gilliam, 987 F.2d 1009, 1013 (4th Cir. 1993). The district court's

determination regarding the amount of drugs to be attributed to a

defendant is a factual question that will be overturned only if clearly

erroneous. See United States v. Vinson, 886 F.2d 740, 742 (4th Cir.

1989).

After reviewing the record, we conclude that the district court did

not clearly err in determining by a preponderance of the evidence that

the 1309 grams of cocaine base from the November 1995 shipment

was within the scope of Beckford's agreement and reasonably foreseeable to him. The district court made factual findings concerning

Beckford's role in the conspiracy and the amount attributable to him.

Specifically, the district court determined that although Beckford did

not transport or distribute the 1309 grams of cocaine base, Beckford,

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because of his role and involvement in the conspiracy, should have

had knowledge of the November 1995 transaction. After hearing testimony that Beckford was the conspiracy leader's "right-hand man"

who traveled with him and held money and drugs for him, the district

court concluded that Beckford was not a minimal participant in the

conspiracy. The district court found that Beckford collected large

amounts of money for the conspiracy leader, that Beckford possessed

the credit card that was used to rent the car which transported the

November 1995 shipment of cocaine base, and that Beckford was

present on several occasions when the conspiracy leader sold drugs.

Accordingly, the district court found by a preponderance of the evidence that the November 1995 shipment of 1309 grams of cocaine

base was reasonably foreseeable to him and within the scope of his

agreement and thus attributed the shipment to Beckford.

Because we find that the district court did not abuse its discretion

in determining that Beckford failed to show a "fair and just" reason

to withdraw his guilty plea and because we conclude that the district

court did not clearly err in attributing the 1309 grams of cocaine base

from the November 1995 shipment to Beckford, we affirm. 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 the decisional process.

AFFIRMED

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