### The Honorable Donald J. Stohr, United States District Judge 1 

### for the Eastern District of Missouri. ___________ No. 95-2336

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Renardo Peebles, * * [PUBLISHED] Appellant. *

___________ Submitted: March 22, 1996 Filed: April 4, 1996

___________ Before FAGG, BOWMAN, and HANSEN, Circuit Judges.

___________ PER CURIAM. Renardo Peebles challenges the District Court's de nial of his motion 1 to withdraw his guilty plea and his sentence. We affirm. In accordance with a written plea agreement and stipulation of facts, Peebles pleaded guilt y to being a felon in possession of a firearm (Count I), possessing cocain e base (crack) with intent to distribute (Count II), and carrying a firearm in relation to a drug trafficking offense (Coun t III). Six months after pleading guilty, and less than two weeks before hi s scheduled sentencing, Peebles wrote the District Court, asserting that a conflict o f interest had arisen between him and his counsel. Peeble s aver red that "promises apart from the plea agreement" were not bein g honored, and urged the District Court to reject the plea agreement. The District

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Court granted counsel leave to withdraw, appointed new counsel, and held a hear ing on Peebles's subsequently-filed motion to withdraw his guilt y plea.
Peebles t estified essentially that his counsel had arranged for him to receive a 78-month sentence in return for his guilty plea; Peebles' s mother corroborated his testimony. Counsel deni ed having promised Peebles that he would receive such a sentence. The District Court denied Peebles' s motion, concluding that Peebles had failed to establish a fair and jus t reason for withdrawing his plea, as required by Federal Rule of Civi l Procedure 32(e) (formerly Rule 32(d)).
Prior to sentencing, Peebles moved for a downward departure, unde r U.S.S. G. § 5K2.0, based on the United States Sentencing Commission' s Februa ry1995 report concluding that the 100-to-1 ratio between th e penalties for crack cocaine and powder cocaine was not justified, and a propo sed Guidelines amendment--which would have eliminated the 100-to- 1 ratio--forwarded by the Commission to Congress f or its consideration. The Distri ct Court denied the motion and sentenced Peebles to concurren t se ntences of 120 months on Count I and 162 months on Count II, and a consecutive sentence of 60 months on Count III. Peebles appeals.

We con clude the District Court did not abuse its discretion i n determining that Peebles failed to establish a fair and just reason fo r withdrawing his guilty plea. See United States v. Burney , 75 F.3d 442, 44 4 (8th Cir. 1996) (stan dard of review); see also United States v. Abdullah , 947 F.2d 306, 311 (8th Cir. 1991) (where defenda nt does not establish fair and just reason for withdrawing plea, District Court need not examine othe r factors outlined in United States v. Boone , 869 F.2d 1089, 1091-92 (8t h Cir.), cer t. denied , 493 U.S. 822 (1989)), cert. denied , 504 U.S. 92 1 (1992). Where the District Court fully informeda defendant of the rights he was waiving, and the defendant's plea-hearing representations

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suppor t the District Court's finding that he knowingly and voluntaril y pleaded guilty, "the occasion for setting aside a guilty plea should seldo m arise." United States v. Newson , 46 F.3d 730, 732 (8th Cir. 1995 ) (internal quotation marks omitted). The District Court was in the best position to assess the credi bility of P eebles and his mother, and to resolve any inconsistencies in th e testimony. See id. a t 733. Moreover, even if Peebles's counsel told him he would receive a 78-month sentence, and Peebles relied on tha t representationin pleading guilty, the absence of such terms in the plea agr eement and stipulation, Peebles's admissions at the change-of-ple a hearing, and the District Court's statements to Peebles at the hearin g demonstrate Peebles was aware of the possible pu nishment he faced and that the Guidelines would apply. See Burney , 75 F.3d at 444-45. Furthermore, we agree with the District Court that Peebles's claims of innocence ar e unavailing, given his admissions to the contrary in the plea agreement and stipula tion, and at the change-of-plea hearing. See United States v
. Ludwig , 972 F.2d 948, 951 (8th Cir. 1992); United States v. Morrison , 967 F.2d 264, 268 (8th Cir. 1992).
Fin ally, we conclude Peebles's downward-departure argument i s foreclosed by this court's decision in United St ates v. Higgs , 72 F.3d 69, 70 (8th Cir. 1995) (p er curiam), and his equal protection and due process challenge to the punishment scheme of 21 U.S.C. § 841(b) is without merit, see United States v. Jackson , 67 F.3d 1359, 1367 (8th Cir. 1995), petition for cert. filed , (U.S. Jan. 9, 1996) (No. 95-7436); United States v
. Delaney , 52 F.3d 182, 189 (8th Cir.), cert. deni ed , 116 S. Ct. 209 (1995). Accordingly, the judgment of the District Court is affirmed.

### -4- A true copy.

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