UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5592

VICTOR MANUEL VALE,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Raymond A. Jackson, District Judge.

(CR-95-23)

Submitted: October 8, 1996

Decided: November 18, 1996

Before HALL, MURNAGHAN, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William T. Harville, Norfolk, Virginia, for Appellant. Helen F. Fahey,

United States Attorney, Fernando Groene, Assistant United States

Attorney, Norfolk, 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Unpublished opinions are not binding precedent in this circuit.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:

On the morning of his trial, Victor Manuel Vale decided to plead

guilty under a plea agreement to one count of attempted possession

with intent to distribute in excess of 500 grams of cocaine in violation

of 21 U.S.C. §§ 841(a)(1), 846 (1994). The district court conducted

a thorough Fed. R. Civ. P. 11 colloquy and determined that Vale

knowingly and voluntarily pled guilty to the crime. The court carefully reviewed the contents of the plea agreement with Vale. Three

months later at his sentencing hearing, Vale moved to withdraw his

guilty plea, alleging that he had been coerced into pleading guilty

because the Government threatened to reindict him and the mother of

his daughter if he did not plead guilty. The district court denied his

motion and sentenced him. Vale alleges on appeal that the district

court erred by denying his motion without conducting an evidentiary

hearing. The Government moved to dismiss the appeal. We deny the

motion to dismiss and affirm the district court's denial of Vale's

motion to withdraw his guilty plea.

The Government's motion to dismiss is based on Vale's waiver of

his right to appeal any sentence imposed by the district court, as set

forth in his plea agreement. Because Vale only appeals the district

court's order denying his motion to withdraw his guilty plea under

Fed. R. Crim. P. 32(d), however, we deny the Government's motion

to dismiss.

We review a district court's refusal to allow a defendant to withdraw a guilty plea for an abuse of discretion. United States v. Puckett,

61 F.3d 1092, 1099 (4th Cir. 1995). A defendant does not have an

absolute right to withdraw a guilty plea. United States v. Ewing, 957

F.2d 115, 119 (4th Cir.), cert. denied, 505 U.S. 1210 (1992). Rather,

the defendant must present a "fair and just reason" for the withdrawal.

Fed. R. Crim. P. 32(e). A "fair and just reason" is one that "essentially

challenges . . . the fairness of the Rule 11 proceeding." United States

v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (in banc), cert.

denied, ___ U.S. ___, 63 U.S.L.W. 3460 (U.S. Dec. 12, 1994) (No.

94-6055). An appropriately conducted Rule 11 proceeding raises a

strong presumption that the guilty plea is final and binding. Id.

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We consider several factors in determining whether a defendant

may withdraw a guilty plea: (1) whether there was a delay between

the entry of the plea and the filing of the motion; (2) whether the

defendant was assisted by competent counsel; (3) whether the defendant credibly asserted his legal innocence; (4) whether the defendant

offered credible evidence that his plea was not knowing or voluntary;

(5) whether the withdrawal will prejudice the government; and (6)

whether the withdrawal will inconvenience the court and waste judicial resources. United States v. Moore, 931 F.2d 245, 248 (4th Cir.),

cert. denied, 502 U.S. 857 (1991). The defendant carries the burden

of establishing a fair and just reason for withdrawal, even if the government has not shown prejudice. Lambey, 974 F.2d at 1393-94.

Consideration of these factors weighs against Vale. First, over

three months elapsed between the time he entered his plea and the

time he moved to withdraw the plea. See United States v. Craig, 985

F.2d 175, 178 (4th Cir. 1993) (holding that eight weeks between

guilty plea and motion militates against withdrawal). Second, Vale

does not assert that he had incompetent counsel. Third, Vale never

credibly asserted his legal innocence in the face of voluminous,

uncontested, and credible evidence to the contrary. See generally

United States v. Haley, 784 F.2d 1218, 1219 (4th Cir. 1986). Fourth,

Vale failed to offer credible evidence that his plea was not knowing

and voluntary. The district court fully complied with the requirements

of Rule 11 and specifically asked Vale whether he had been coerced

or threatened into pleading guilty. Vale answered that he had not. As

this court stated in Lambey, an "appropriately conducted Rule 11 proceeding . . . raise[s] a strong presumption that the plea is final and

binding." 974 F.2d at 1394. Fifth, granting Vale's motion would prejudice the Government because Vale did not plead until the morning

of trial, and twelve of the Government's fifteen witnesses were from

outside the court's district and one witness was scheduled to be transferred to Buenos Aires, Argentina, a week after trial. Finally, the district court viewed the motion to withdraw the plea as an attempt to

manipulate the court. Accordingly, we find that Vale has failed to

meet his burden of showing a fair and just reason to permit withdrawal of his plea under Fed. R. Civ. P. 32(d).

That the district court failed to conduct an evidentiary hearing to

determine the factual basis of Vale's plea does not alter this result.

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Vale never requested such a hearing, and a defendant does not automatically get an evidentiary hearing as a matter of right when he

seeks to withdraw a guilty plea. Moore, 931 F.2d at 248. Although

"`evidentiary hearings should be liberally granted prior to sentencing,'" the hearing need only be granted when a"`fair and just reason'

for withdrawal is presented." Id. (quoting United States v. Fountain,

777 F.2d 351, 358 (7th Cir. 1985), cert. denied , 475 U.S. 1029

(1986)). Vale has failed to make such a showing and therefore we

affirm the district court's denial of the motion.

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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