UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4162

STEVE WAY,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of West Virginia, at Martinsburg.

Irene M. Keeley, District Judge.

(CR-96-4)

Submitted: September 9, 1997

Decided: September 23, 1997

Before HAMILTON and MICHAEL, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James T. Kratovil, KRATOVIL LAW OFFICES, Charles Town,

West Virginia, for Appellant. William D. Wilmoth, United States

Attorney, Sherry L. Muncy, Assistant United States Attorney, Elkins,

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Unpublished opinions are not binding precedent in this circuit.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:

Steve Way, who pled guilty to conspiracy to transport stolen motor

vehicles in interstate commerce,1 appeals his conviction and sentence

claiming that the district court erred by refusing to allow him to withdraw his guilty plea. Further, Way asserts that the district court erred

by denying him a two-point downward adjustment in his base offense

 3192 53 1 level under U.S. SENTENCING GUIDELIN

 ES MANUAL § 3E1.1 (1995).

After a review of the record, we find no reversible error. Therefore,

we affirm Way's conviction and sentence.

First, Way claims that the district court erred by refusing to grant

his motion to withdraw his guilty plea. Rule 32(e) of the Federal

Rules of Criminal Procedure provides that a court may permit withdrawal of a guilty plea if the motion is made before sentencing and

if the defendant establishes any "fair and just" reason for withdrawal

of the plea.2 Way has the burden of showing a "fair and just" reason

for the withdrawal,3 and we review a motion to withdraw a plea under

an abuse of discretion standard.4

In his motion to withdraw his guilty plea, Way claimed that his

plea should be withdrawn because he misunderstood the possible

length of his incarceration. Additionally, he asserted that he was not

competent to plead guilty due to a lack of education and intelligence.

Way's claims are without merit. The district court did not abuse its

discretion by denying Way's motion to withdraw his guilty plea

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1 See 18 U.S.C. §§ 371, 2312 (1994).

2 See United States v. Hyde, ___ U.S. ___, 65 U.S.L.W. 4369 (U.S.

May 27, 1997) (No. 96-667).

3 See FED. R. CRIM. P. 32(e); United States v. Moore, 931 F.2d 245, 248

(4th Cir. 1991).

4 See Moore, 931 F.2d at 248.

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because Way is in fact guilty of conspiring to transport stolen motor

vehicles in interstate commerce. At the FED. R. CRIM. P. 11 hearing,

Way stated under oath that he was in fact guilty of the crime charged.

His statements at the Rule 11 colloquy are presumptively trustworthy

and are considered conclusive absent compelling evidence showing

otherwise.5

Furthermore, Way never made credible assertions of innocence or

established that his plea was unknowing or involuntary. The district

court thoroughly questioned Way to ensure that he was competent to

enter a plea and that he understood the nature and consequences of

his plea. Specifically, the court inquired into Way's education, mental

health, use of drugs or medication, and whether Way understood all

the rights he was forfeiting by pleading guilty. Way acknowledged

that he understood his rights, consulted with counsel, understood the

consequences of his plea, and was freely and voluntarily pleading

guilty. The court also informed Way of the maximum sentence he

could receive; however, an accurate estimate of his sentence was not

possible until the presentence report was prepared. Way responded

that he understood and that he realized that he could not withdraw his

guilty plea if his sentence was more severe than anticipated. Thus, the

plea should be upheld because Way made an intelligent and informed

decision when he voluntarily pled guilty.6 The appropriately conducted Rule 11 proceeding raises a strong presumption that the plea

is final and binding.7

Finally, Way argues that his guilty plea mandates an acceptance of

responsibility award. We find no merit in this challenge. The burden

is on Way to show that he is entitled to a downward adjustment,8 and

"the district court's decision not to reduce the offense level [on acceptance of responsibility grounds] will not be disturbed unless clearly

erroneous."9 The sentencing judge is in a unique position to evaluate

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5 See Blackledge v. Allison, 431 U.S. 63, 73-74 (1977).

6 See North Carolina v. Alford, 400 U.S. 25, 31 (1970); Boykin v.

Alabama, 395 U.S. 238, 242 (1969).

7 See United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (in

banc).

8 See United States v. Myers, 66 F.3d 1364, 1371 (4th Cir. 1995).

9 United States v. Curtis, 934 F.2d 553, 557 (4th Cir. 1991).

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a defendant's acceptance of responsibility,10 and given Way's attempt

to withdraw his guilty plea and equivocal statements at sentencing,

we do not think that the district court erred in denying credit for

acceptance of responsibility.

Accordingly, we affirm Way's conviction and sentence. 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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10 USSG § 3E1.1, comment. (n.5) (1995).

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