UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4150

OSCAR LEON HERNANDEZ,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of West Virginia, at Martinsburg.

Frederick P. Stamp, Jr., Chief District Judge.

(CR-96-3)

Submitted: April 7, 1998

Decided: April 29, 1998

Before HAMILTON, WILLIAMS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Timothy F. Cogan, Donald J. Tennant, Jr., CASSIDY, MYERS,

COGAN, VOEGELIN & TENNANT, L.C., Wheeling, West Virginia,

for Appellant. William D. Wilmoth, United States Attorney, Paul T.

Camilletti, Assistant United States Attorney, Wheeling, 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Unpublished opinions are not binding precedent in this circuit.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:

Oscar Leon Hernandez pled guilty to participating in a continuing

criminal enterprise in violation of 21 U.S.C.A.§ 848 (West Supp.

1998), and the court sentenced him to a 262-month prison sentence

to be followed by four years of supervised release. Hernandez

appeals, claiming that the district court erred in denying his motions

to substitute counsel and to withdraw his guilty plea and that his

counsel provided ineffective assistance. We affirm.

I.

Hernandez was charged in two indictments with conspiracy to possess with intent to distribute and to distribute crack cocaine, possession with intent to distribute crack, aiding and abetting in a homicide

in furtherance of a continuing criminal enterprise ("CCE"), and participating in a CCE. Hernandez agreed to plead guilty to participating

in a CCE, and the government agreed to dismiss the remaining

charges. Hernandez executed the plea agreement on October 3, 1996.

During the plea colloquy on October 15, 1996 (one day before Hernandez' trial was scheduled to begin), Hernandez admitted that he

was guilty of participating in a CCE and that the plea was not the

result of threats or promises not contained in the plea agreement. The

district court then asked Hernandez if he believed counsel had provided adequate and effective representation. Hernandez replied, "To

an extent." (J.A. at 112). When the court inquired further, Hernandez

explained that counsel failed to interview over 100 witnesses on the

government's witness list and to interview members of his family.

The court asked Hernandez what witnesses were not interviewed and

what information could have been provided by them to help his

defense. Hernandez merely restated the number of witnesses counsel

failed to interview, and he admitted for the second time that he was

guilty of participating in a CCE.

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Hernandez' counsel explained that they reviewed the statements of

witnesses interviewed by government agents and decided not to interview some of them so that at trial the witnesses could be impeached

by attacking the portions of their statements Hernandez said were

incorrect. Moreover, counsel interviewed witnesses who were critical

to Hernandez' defense of the CCE and murder in furtherance of the

CCE charges. Counsel's strategy included challenging the number of

associates that could be connected to Hernandez and showing that he

had not gained financially. Because the government had a videotape

of Hernandez delivering crack cocaine and receiving money for it,

counsel decided not to focus on defending the distribution counts.

Counsel also stated that many of the witnesses on the government's

list were codefendants, whose attorneys likely would not have permitted their clients to discuss the case. Finally, counsel planned to call

some members of Hernandez' family but decided not to call Hernandez' girlfriend as a witness because her prior statements were

inconsistent. Based on these facts, counsel argued that they were adequately prepared for trial and to recommend that Hernandez enter a

guilty plea to participating in a CCE. Counsel also noted that Hernandez benefitted from the plea agreement by avoiding the possible

life sentence if convicted of the murder and having an opportunity to

cooperate with the government. At the conclusion of counsel's argument, the court asked Hernandez if he was guilty of participating in

a CCE, and Hernandez for a third time stated that he was guilty.

In addressing Hernandez' ineffective assistance of counsel claim,

the court noted that such claims generally should be raised in a collateral proceeding under 28 U.S.C.A. § 2255 (West 1994 & Supp.

1998). The court found that counsel's performance did not fall below

an objective standard of reasonableness and that in light of Hernandez' repeated admissions of guilt, the outcome of the proceeding

would not have been different. The court then accepted Hernandez'

guilty plea, concluding that Hernandez was competent to enter a plea,

he made the plea freely and voluntarily, and a factual basis supported

the plea.

About four months after the court accepted his plea and one week

before sentencing, Hernandez filed pro se a motion to substitute counsel and to withdraw his plea. The district court denied the motion to

substitute counsel, finding that it was untimely filed and that Her-

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nandez did not show good cause to appoint new counsel. With regard

to Hernandez' motion to withdraw his guilty plea, the court applied

the six-factor test set forth in United States v. Moore, 931 F.2d 245,

248 (4th Cir. 1991), and denied the motion. The court sentenced Hernandez to a 262-month prison term and imposed four years of supervised release. Hernandez timely appeals.

II.

Hernandez first claims that the district court erred by denying his

motion to substitute counsel. In determining whether to grant or deny

a motion to substitute counsel, a district court must consider: "(1)

whether the motion for substitute counsel was timely; (2) whether the

district court's inquiry into the defendant's complaint was sufficient;

and (3) whether the conflict between attorney and client was so great

as to amount to a `total lack of communication,' thereby preventing

an adequate defense." United States v. Morsley, 64 F.3d 907, 918 (4th

Cir. 1995) (quoting United States v. Hanley, 974 F.2d 14, 17 (4th Cir.

1992)). We review the district court's denial for an abuse of discretion. See United States v. Corporan-Cuevas, 35 F.3d 953, 956 (4th

Cir. 1994).

Hernandez' request for new counsel was not timely made, coming

one week before sentencing and about four months after the court

accepted his guilty plea. Moreover, at the plea colloquy, the district

court explored at length Hernandez' complaint that counsel failed to

interview witnesses. Finally, there is no evidence that the conflict

between Hernandez and his counsel was so great that it resulted in a

total lack of communication preventing an adequate defense. See

Morsley, 64 F.3d at 918. On these facts, we find that the district court

did not abuse its discretion in denying Hernandez' motion to substitute counsel. See Corporan-Cuevas, 35 F.3d at 956.

Nor did the district court abuse its discretion in denying Hernandez' motion to withdraw his guilty plea. See United States v.

Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996) (stating standard of

review). Withdrawal of a guilty plea is not a matter of right. See

Moore, 931 F.2d at 248. The defendant bears the burden of showing

a "fair and just reason" for the withdrawal of his guilty plea. See Fed.

R. Crim. P. 32(e); United States v. Hyde, ___ U.S. ___, 65 U.S.L.W.

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4369 (U.S. May 27, 1997) (No. 96-667). "[A]`fair and just' reason

. . . is one that essentially challenges . . . the fairness of the [Fed. R.

Crim. P.] 11 proceeding." United States v. Lambey, 974 F.2d 1389,

1394 (4th Cir. 1992) (en banc). An appropriately conducted Rule 11

proceeding, however, raises a strong presumption that the guilty plea

is final and binding. Id.

Courts consider six factors in determining whether to permit the

withdrawal of a guilty plea: (1) whether defendant offered credible

evidence that the plea was not knowing or voluntary; (2) whether

defendant credibly asserted his legal innocence; (3) the length of

delay between the entry of the plea and the filing of the motion to

withdraw; (4) whether defendant had assistance of effective counsel;

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

whether withdrawal would inconvenience the court or waste judicial

resources. See Moore, 931 F.2d at 248. The defendant carries the burden of establishing a fair and just reason for withdrawal, even if the

government has not shown prejudice. See Lambey , 974 F.2d at 1393-

94.

Hernandez primarily contends that he should be allowed to withdraw his guilty plea because counsel provided ineffective assistance

by failing to interview witnesses.* For ineffective assistance of counsel to constitute a fair and just reason to withdraw a guilty plea, it

must be of a constitutional magnitude. See id. at 1394. To constitute

a fair and just reason, counsel's performance must fall "`below an

objective standard of reasonableness,'" and prejudice must be shown

by demonstrating that absent the substandard performance, "`there is

a reasonable probability that [defendant] would not have pleaded

guilty and would have insisted on going to trial.'" United States v.

Craig, 985 F.2d 175, 179 (4th Cir. 1993) (quoting United States v.

DeFreitas, 865 F.2d 80, 82 (4th Cir. 1989)).

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*To the extent Hernandez raises other claims of ineffective assistance

of counsel that are unrelated to the withdrawal of his guilty plea, such

claims should be raised in a motion under 28 U.S.C.A. § 2255 (West

1994 & Supp. 1998), and not on direct appeal, unless the record conclusively shows that counsel was ineffective. See United States v. King, 119

F.3d 290, 295 (4th Cir. 1997).

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We find that Hernandez fails to show that counsel's failure to interview all of the witnesses on the government's witness list prejudiced

him. Hernandez presented no evidence at the plea colloquy or on

appeal about what testimony the witnesses could have provided to

help his defense. Moreover, Hernandez admitted three times during

the plea colloquy that he was, in fact, guilty of participating in a CCE.

Consideration of the remaining Moore factors also weighs against

Hernandez. He offers no credible evidence that his plea was not

knowing and voluntary. Also, the district court fully complied with

Rule 11. See Wilson, 81 F.3d at 1307 ("The key to a [Rule] 32(e)

motion is whether or not the Rule 11 proceeding was properly conducted."). Moreover, during the plea hearing, Hernandez stated that

his plea was not the result of threats or promises not contained in the

plea agreement. He makes no credible assertion of innocence but

rather admitted three times during the plea hearing that he was guilty

of participating in a CCE. Further, the four-month delay between Hernandez' plea and the motion to withdraw is significant. See Moore,

931 F.2d at 248 (finding that six-week delay militated against withdrawal of plea). Finally, allowing Hernandez to withdraw his plea in

light of his repeated admissions of guilt might prejudice the government and would waste judicial resources. We therefore find that the

district court did not abuse its discretion in denying the motion to

withdraw. See Wilson, 81 F.3d at 1305.

III.

Accordingly, we affirm Hernandez' conviction. 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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