UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4837
GREGORY JONES, a/k/a Boo,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, District Judge.
(CR-95-234-L)
Submitted: February 17, 1998
Decided: February 27, 1998
Before MURNAGHAN, NIEMEYER, and WILLIAMS,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Joseph J. Gigliotti, Fulton, Maryland, for Appellant. Lynne A. Bat-
taglia, United States Attorney, Robert R. Harding, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Gregory Jones appeals from the district court's order denying his
Fed. R. Crim. P. 32(e) motion for withdrawal of his plea of guilty to
conspiracy to distribute and to possess with intent to distribute
cocaine in violation of 21 U.S.C. § 846 (1994). Finding no abuse of
discretion in the denial of this motion, we affirm.
On the day his trial was scheduled to begin, Jones requested to
meet with his attorney and the prosecutor, and he elected to plead
guilty. During the subsequent hearing pursuant to Fed. R. Crim. P. 11,
Jones stated that his lawyer had explained the plea agreement to him
to his satisfaction, there were no promises outside the plea agreement,
and no one had attempted to force him to enter the plea against his
free will. The prosecutor summarized on the record the terms of the
plea agreement, including the offense level as determined by the
quantity of cocaine and the adjustments for a firearm, role in the
offense, and acceptance of responsibility. The prosecutor also read the
stipulated statement of facts, and Jones agreed that the facts were
accurate. After Jones stated that he understood the court's explanation
of the maximum sentence and how his sentence would be computed,
the court accepted Jones' guilty plea.
Two months later, Jones moved to withdraw the guilty plea, assert-
ing that he was denied the close assistance of competent counsel in
entering the plea and that during the Rule 11 hearing the district court
failed to make findings to determine whether Jones' plea was freely
and voluntarily entered. The district court held a hearing on the
motion and, in an oral decision, denied the motion to withdraw the
guilty plea. After the court sentenced Jones to 272 months imprison-
ment, Jones appealed from the denial of his motion to withdraw his
plea.
In considering a motion to withdraw a guilty plea, the district court
should weigh the defendant's evidence that the plea was not knowing
or voluntary, the credibility of the defendant's assertion of his legal
innocence, any delay between the entry of the plea and the filing of
the motion to withdraw the plea, whether the defendant has had the
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close assistance of competent counsel, any prejudice to the govern-
ment, and inconvenience to the court or waste of judicial resources.
See United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).
It is undisputed that Jones never contended that he was innocent of
the charges. He merely asserted that the quantity was "too high." It
is also undisputed that there was a two-month delay between the entry
of the plea and Jones' motion to withdraw the plea. See Moore, 931
F.2d at 248 (six weeks is a long delay). Further, the government
would be prejudiced by allowing Jones to withdraw his plea. All of
the cooperating co-defendants had been sentenced before Jones'
motion was filed; therefore, they would no longer have much incen-
tive to testify against Jones. On appeal, Jones contends only that the
district court improperly determined that he failed to present credible
evidence that the plea was not knowing and voluntary and that he was
denied the close assistance of competent counsel.
At the hearing on his motion to withdraw his plea, Jones testified
that ten minutes before his trial was scheduled to begin, his attorney
presented him with the plea agreement. He stated that his attorney did
not read the agreement to him, but merely reviewed the first page,
assured him that he would receive a fifteen-year sentence, and
advised him to answer "yes" to the judge's inquiries during the Rule
11 hearing. Jones testified that, although he did not agree with the
stipulation in the plea agreement, he was afraid of receiving the maxi-
mum sentence of life imprisonment; therefore he entered a guilty plea
and affirmatively answered the judge's questions during the hearing.
Regarding the cooperation provision, Jones stated that he was
informed that he would receive the reduction for cooperation if his
plea induced other co-defendants to plead guilty; he was not informed
that he would be required to testify against them.
The case agent, the prosecutor, and Jones' former counsel also tes-
tified at the hearing. They testified that the case against Jones was
strong and the evidence overwhelming. Further, they stated that dur-
ing the many prior plea discussions, Jones was informed extensively
about the benefits of cooperation and what that would involve, includ-
ing which co-defendants he would be expected to testify against.
They also testified that no plea offer to Jones provided for a fifteen-
year sentence. Jones' former counsel testified that he did not instruct
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Jones to merely response "yes" to the questions during the plea hear-
ing, and, on the morning that Jones pled guilty, he read the entire plea
agreement to Jones, word for word, from front to back. Counsel also
testified that he did not promise Jones a fifteen-year sentence; rather,
he informed Jones that the lowest possible sentence would be seven-
teen and a half years.
In denying the motion, the district court stated that, based on Jones'
statements during the Rule 11 hearing and on the testimony during the
hearing on the motion to withdraw the plea, he found incredible
Jones' testimony concerning the plea agreement and his acceptance
of the plea. This court affords great deference to credibility determi-
nations, which depend on the court's observation of the witnesses'
demeanor and manner. See United States v. Saunders, 886 F.2d 56,
60 (4th Cir. 1989); United States v. Cecil, 836 F.2d 1431, 1441 (4th
Cir. 1988). Crediting the testimony of the prosecutor and Jones' for-
mer counsel, and after reviewing the Rule 11 hearing transcript, we
find that the district court did not err in finding that Jones freely and
voluntarily entered the guilty plea.
Further, the court discredited Jones' testimony that his attorney
advised him he would receive a sentence of fifteen years, where the
plea agreement provided for--at best and with cooperation--
seventeen and a half years. Counsel testified that he never promised
Jones a fifteen-year sentence. We find that the district court appropri-
ately concluded that Jones' former counsel's performance did not fall
below an objective standard of reasonableness. See United States v.
Craig, 985 F.2d 175, 179 (4th Cir. 1993). Moreover, this court has
previously upheld the denial of a motion to withdraw a guilty plea
where the defendant claimed reliance on counsel's advice that his sen-
tence would be 78 to 108 months and defendant was sentenced to 360
months. See United States v. Lambey, 974 F.2d 1389, 1394-96 (4th
Cir. 1992); see also United States v. Lambert , 994 F.2d 1088, 1093
(4th Cir. 1993).
Additionally, Jones has not shown that but for the advice of coun-
sel he would have proceeded to trial. See Craig , 985 F.2d at 179.
Rather, it was he who called the meeting to discuss a plea ten minutes
before jury selection in his case. He stated that he accepted the plea
hoping to obtain a lesser sentence because he was afraid that he would
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receive a life imprisonment sentence if he went to trial and were
found guilty on all charges. Further, Jones was aware that the govern-
ment had a strong case against him.
Therefore, we affirm the district court's order denying Jones'
motion to withdraw his plea. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED
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