UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4532
WILLIAM CALVIN JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court for the
Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-94-128-A)
Submitted: October 21, 1997
Decided: November 18, 1997
Before NIEMEYER, HAMILTON, and
MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
James K. Bredar, Federal Public Defender, Beth M. Farber, Assistant
Federal Public Defender, Baltimore, Maryland, for Appellant. Helen
F. Fahey, United States Attorney, Elizabeth A. Jex, Special Assistant
United States Attorney, Alexandria, 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Unpublished opinions are not binding precedent in this circuit.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:
William Calvin Johnson pled guilty to the indictment that charged
him with armed robbery of the Arlington Schools Federal Credit
Union, in violation of 18 U.S.C. §§ 2, 2113(a), (d) (1994) (Count
One), and using a firearm in a crime of violence, in violation of 18
U.S.C. §§ 2, 924(c)(1) (1994) (Count Two). The district court sen-
tenced Johnson to ninety-seven months' imprisonment for Count One
and a consecutive sixty-months for Count Two, to be followed by a
three-year term of supervised release. Johnson now appeals his sen-
tence. Finding no reversible error, we affirm.
Johnson first asserts that the district court abused its discretion by
refusing to allow him to withdraw his guilty plea. The withdrawal of
a guilty plea is not a matter of right.1 The defendant bears the burden
of showing a fair and just reason for the withdrawal even in the
absence of a showing of prejudice by the government. 2 This is true
even when the defendant seeks to withdraw the plea before the district
court formally accepts a plea agreement.3 On appeal, the district
court's refusal to allow the withdrawal of a guilty plea is reviewed for
abuse of discretion.4
For us to find such abuse of discretion, the district court must either
have failed or refused to exercise its discretion or relied upon an erro-
neous legal or factual premise in the exercise of its discretionary
authority.5 We find no such abuse of discretion here. The district court
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1 See United States v. Ewing, 957 F.2d 115, 119 (4th Cir. 1992).
2 See United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).
3 See United States v. Hyde, ___ U.S. ___, 65 U.S.L.W. 4369 (U.S.
May 27, 1997) (No. 96-667).
4 See United States v. Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996).
5 See James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993).
2
addressed each of Johnson's reasons for withdrawing his plea individ-
ually and concluded that none qualified as a fair and just reason to
grant the motion to withdraw. The court also properly considered
Johnson's reasons in light of the factors enunciated by this court in
Moore. Therefore, we find no reversible error in the court's denial of
Johnson's motion to withdraw his guilty plea.
Next, Johnson asserts that the sentencing court clearly erred when
it refused to find he was entitled to the two-level reduction in offense
level under the Guidelines for acceptance of responsibility.6 Johnson
claims that because he never denied his participation in the bank rob-
bery or any of the facts of the offense, he was entitled to the
acceptance-of-responsibility reduction in offense level.
A defendant is entitled to a two-level reduction in offense level
under USSG § 3E1.1 if he clearly demonstrates acceptance of respon-
sibility for his offense. Whether or not a defendant has accepted
responsibility for his crime is a factual question, 7 and we review such
factual determinations under the clearly erroneous standard.8 A guilty
plea does not automatically entitle a defendant to such a reduction as
a matter of right.9
Although he pled guilty, Johnson refused to cooperate with the pro-
bation officer during the preparation of his presentence report. Fur-
ther, during the sentencing hearing, Johnson stated he did not accept
any responsibility for the offense and maintained his innocence
because the Government allegedly had not proven the credit union
was federally insured. We find that Johnson's uncooperative behav-
ior, his refusal to fully disclose the circumstances surrounding the
armed robbery and his attempt to escape, combined with his admis-
sions in open court, are inconsistent with acceptance of responsibility
and do not warrant the two-level reduction in offense level under
USSG § 3E1.1.10
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6 See U.S. Sentencing Guidelines Manual § 3E1.1 (1995).
7 See United States v. Curtis, 934 F.2d 553, 557 (4th Cir. 1991).
8 See United States v. Strandquist , 993 F.2d 395, 401 (4th Cir. 1993).
9 See United States v. Harris, 882 F.2d 902, 905 (4th Cir. 1989).
10 See United States v. Beal, 960 F.2d 629, 632 (7th Cir. 1992) (defen-
dant's failure to cooperate with probation office's investigation properly
considered in denying reduction for acceptance of responsibility).
3
In his pro se supplemental brief, Johnson asserts that his trial coun-
sel was ineffective because he failed to assist in his attempt to with-
draw his guilty plea. We find that Johnson's claim is without merit.
Claims of ineffective assistance of counsel are generally not appropri-
ate on direct appeal and should be raised in a motion pursuant to 28
U.S.C.A. § 2255 (West 1994 & Supp. 1997), unless the record con-
clusively shows that counsel did not provide effective assistance.11
Here, the record does not conclusively show that counsel's represen-
tation fell below any objective standard of reasonableness.12 Since the
record before us discloses no error, Johnson's claim of ineffective
assistance of counsel is more properly brought in a§ 2255 action.
For the foregoing reasons, we affirm Johnson's sentence. Addition-
ally, we deny Johnson's motions to review the audio tapes of his Rule
11 hearing since transcripts of that proceeding are contained in the
record on appeal. 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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11 See United States v. DeFusco , 949 F.2d 114, 117 (4th Cir. 1991).
12 See Strickland v. Washington , 466 U.S. 668 (1984).
4