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. *

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 Submitted: March 22, 1996

 Filed: April 4, 1996

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Before FAGG, BOWMAN, and HANSEN, Circuit Judges.

___________

PER CURIAM.

Renardo Peebles challenges the District Court's denial 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 guilty to being a felon in possession of a firearm (Count

I), possessing cocaine base (crack) with intent to distribute (Count II),

and carrying a firearm in relation to a drug trafficking offense (Count

III). Six months after pleading guilty, and less than two weeks before his

scheduled sentencing, Peebles wrote the District Court, asserting that a

conflict of interest had arisen between him and his counsel. Peebles

averred that "promises apart from the plea agreement" were not being

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 hearing on Peebles's subsequently-filed motion to withdraw his guilty

plea.

Peebles testified 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 denied 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 just

reason for withdrawing his plea, as required by Federal Rule of Civil

Procedure 32(e) (formerly Rule 32(d)).

Prior to sentencing, Peebles moved for a downward departure, under

U.S.S.G. § 5K2.0, based on the United States Sentencing Commission's

February 1995 report concluding that the 100-to-1 ratio between the

penalties for crack cocaine and powder cocaine was not justified, and a

proposed Guidelines amendment--which would have eliminated the 100-to-1

ratio--forwarded by the Commission to Congress for its consideration. The

District Court denied the motion and sentenced Peebles to concurrent

sentences 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 conclude the District Court did not abuse its discretion in

determining that Peebles failed to establish a fair and just reason for

withdrawing his guilty plea. See United States v. Burney, 75 F.3d 442, 444

(8th Cir. 1996) (standard of review); see also United States v. Abdullah,

947 F.2d 306, 311 (8th Cir. 1991) (where defendant does not establish fair

and just reason for withdrawing plea, District Court need not examine other

factors outlined in United States v. Boone, 869 F.2d 1089, 1091-92 (8th

Cir.), cert. denied, 493 U.S. 822 (1989)), cert. denied, 504 U.S. 921

(1992). Where the District Court fully informed a defendant of the rights

he was waiving, and the defendant's plea-hearing representations
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support the District Court's finding that he knowingly and voluntarily

pleaded guilty, "the occasion for setting aside a guilty plea should seldom

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 credibility

of Peebles and his mother, and to resolve any inconsistencies in the

testimony. See id. at 733. Moreover, even if Peebles's counsel told him

he would receive a 78-month sentence, and Peebles relied on that

representation in pleading guilty, the absence of such terms in the plea

agreement and stipulation, Peebles's admissions at the change-of-plea

hearing, and the District Court's statements to Peebles at the hearing

demonstrate Peebles was aware of the possible punishment 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 are

unavailing, given his admissions to the contrary in the plea agreement and

stipulation, 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).

Finally, we conclude Peebles's downward-departure argument is

foreclosed by this court's decision in United States v. Higgs, 72 F.3d 69,

70 (8th Cir. 1995) (per 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. denied, 116 S. Ct. 209 (1995).

Accordingly, the judgment of the District Court is affirmed.
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A true copy.

Attest:

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