
    UNITED STATES of America, Plaintiff-Appellee, v. Larry CHEESE, Defendant-Appellant.
    No. 09-4975.
    United States Court of Appeals, Fourth Circuit.
    Submitted: Dec. 30, 2010.
    Decided: Feb. 17, 2011.
    
      Marc Gregory Hall, HALL & CHO, P.C., Rockville, Maryland, for Appellant. Christopher M. Mason, Special Assistant United States Attorney, James Thomas Wallner, Assistant United States Attorney, Baltimore, Maryland, for Appellee.
    Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.
   Affirmed by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Pursuant to a plea agreement, Larry Cheese pled guilty to conspiracy to distribute and possess with intent to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 846 (2006). The district court sentenced Cheese to 292 months’ imprisonment, the bottom of the advisory guidelines range. Cheese timely appealed.

Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), finding no meritorious grounds for appeal but questioning whether the district court erred by denying Cheese’s motion to withdraw his guilty plea and challenging the reasonableness of Cheese’s sentence. Cheese was advised of his right to submit a pro se supplemental brief, but he did not file one.

At the beginning of his sentencing hearing, Cheese made a pro se motion to withdraw his guilty plea, which the district court denied. We review the district court’s denial of a motion to withdraw a guilty plea for abuse of discretion. United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir.2000). “[A] defendant does not have an absolute right to withdraw a guilty plea, even before sentencing.” United States v. Moore, 931 F.2d 245, 248 (4th Cir.1991). Instead, he must show that a “fair and just reason” supports his request to withdraw his plea. Id.

“[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). In this case, the district court substantially complied with the requirements of Rule 11 in accepting Cheese’s guilty plea. Accordingly, Cheese must overcome a strong presumption that his guilty plea is final and binding. Id.

In determining whether Cheese has carried his burden, we consider six factors:

(1) whether the defendant has offered credible evidence that his plea was not knowing or not voluntary, (2) whether the defendant has credibly asserted his legal innocence, (3) whether there has been a delay between the entering of the plea and the filing of the motion, (4) whether the defendant has had close assistance of competent counsel, (5) whether withdrawal will cause prejudice to the government, and (6) whether it will inconvenience the court and waste judicial resources.

Moore, 931 F.2d at 248. This court has stated that the first, second, and fourth factors are the most significant, as they “speak most straightforwardly to the question of whether the movant has a fair and just reason to upset settled systemic expectations” by withdrawing his guilty plea. United, States v. Sparks, 67 F.3d 1145, 1154 (4th Cir.1995).

Cheese claimed at the sentencing hearing that his guilty plea was not knowing and voluntary because his lawyer promised him on the day of the trial that he would receive a twenty-one-year sentence if he pled guilty and that he was scared into pleading guilty when he had always wanted to proceed to trial because he was innocent. However, during the plea hearing, Cheese declared under oath that he understood that his offense included a statutory minimum sentence of ten years and a statutory maximum term of life in prison. Cheese also denied that anyone had threatened or forced him into pleading guilty. Finally, when the court asked him if, other than in the plea agreement (which did not include a prediction or promise of a particular sentence), anyone had made any promise or prediction about what sentence he would receive, Cheese answered, “No.”

Contrary to his bald claim of innocence at the sentencing hearing, Cheese declared under oath at the plea hearing that the Government’s summary of the facts establishing his guilt was accurate and that he was pleading guilty because he was, in fact, guilty. These statements, made under oath, are presumed to be true. Black-ledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); see Beck v. Angelone, 261 F.3d 377, 395-96 (4th Cir. 2001) (absent “clear and convincing evidence to the contrary,” defendant is bound by statements made under oath at Rule 11 hearing). We conclude that Cheese did not made a credible showing that his guilty plea was not knowing and voluntary or that he is actually innocent. Moreover, although Cheese sought new counsel at his sentencing hearing, his claims regarding the adequacy of counsel’s representation were unsubstantiated.

Thus, the three most important Moore factors weigh against Cheese’s motion to withdraw his guilty plea. Additionally, Cheese waited until the sentencing hearing to try to withdraw his guilty plea. Even if withdrawal of the plea would not prejudice the Government or inconvenience the district court or waste judicial resources, these countervailing considerations do not constitute a “fair and just” reasons to grant Cheese’s motion to withdraw his guilty plea. See Sparks, 67 F.3d at 1154 (noting that Moore factors.three, five, and six “are better understood as countervailing considerations that establish how heavily the [Rule 11] presumption [of finality of the guilty plea] should weigh in any given case.”). We conclude that the district court did not abuse its discretion in denying Cheese’s motion.

Turning to Cheese’s sentence, we review it under a “deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In conducting this review, we “must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the [guidelines range, treating the [guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) [ (2006) ] factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id. at 51, 128 S.Ct. 586. ‘When rendering a sentence, the district court must make an individualized assessment based on the facts presented,” applying the “relevant § 3553(a) factors to the specific circumstances of the case before it.” United States v. Carter, 564 F.3d 325, 328 (4th Cir.2009) (internal quotation marks and emphasis omitted). The court must also “state in open court the particular reasons supporting its chosen sentence” and “set forth enough to satisfy” this court that it has “considered the parties’ arguments and has a reasoned basis for exei’cising [its] own legal decisionmaking authority.” Id. (internal quotation marks omitted).

Once we have determined that the sentence is free of procedural error, we must consider the substantive reasonableness of the sentence, “tak[ing] into account the totality of the circumstances.” Gall, 552 U.S. at 51, 128 S.Ct. 586. If the sentence is within the appropriate guidelines range, this court applies a presumption on appeal that the sentence is reasonable. See United States v. Go, 517 F.3d 216, 218 (4th Cir.2008).

In this case, the district court correctly calculated the advisory guidelines range. Although the court committed procedural error in failing to provide an individualized assessment of Cheese’s case, we conclude that the court’s omission did not affect Cheese’s substantial rights. See United States v. Lynn, 592 F.3d 572, 580 (4th Cir.2010). Furthermore, neither counsel nor Cheese has articulated any factors to overcome the appellate presumption of reasonableness afforded Cheese’s within-guidelines sentence. Accordingly, we conclude that the district court did not abuse its discretion in sentencing Cheese.

In accordance with Anders, we have reviewed the entire record for any meritorious issues and have found none. We therefore affirm the district court’s judgment. This court requires that counsel inform Cheese, in writing, of the right to petition the Supreme Court of the United States for further review. If Cheese requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on Cheese.

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.  