Defendant Bradley Graves appeals the district court’s refusal to allow him to withdraw his guilty plea on two firearms-related charges. For the reasons stated below, we affirm.
In January 1996, Mr. Graves pled guilty to one count of possession of a firearm by a convicted felon, a violation of 18 U.S.C. § 922(g), and one count of using or carrying a firearm during and in relation to a drug trafficking crime, a violation of 18 U.S.C. § 924(e). In exchange for Mr. Graves’ guilty plea on these two counts, the government dismissed four other firearm and drug-related charges. In March 1996, Mr. Graves filed a motion to withdraw his plea. The district court denied the motion based on its substantial compliance with Rule 11 and Mr. Graves’ awareness of the charges to which he pled guilty. The court then sentenced Mr. Graves to 131 months in prison.
Although a defendant’s motion to withdraw a plea before sentencing should be “freely allowed and treated with liberality,” a trial court’s decision on this issue is nevertheless disсretionary.
Barker v. United States,
Rule 32(d) of the Federal Rules of Criminal Procedure provides that a district сourt may allow a defendant to withdraw his or her guilty plea before sentencing “upon a showing ... of any fair and just reason.” Fed.R.Crim.P. 32(d). The burden of demonstrating a fair and just reason rests with the defendаnt, based on the following considerations: (1) defendant’s assertion of innocence; (2) resulting prejudice to the government; (3) defendant’s delay in filing the withdrawal motion; (4) inconvenience to the court; (5) defendant’s assistance of counsel; (6) knowledge and voluntariness of the plea; and (7) resulting waste of judicial resources.
United States v. Gordon,
To sustain a conviction under 18 U.S.C. § 924(c) for using or carrying a firearm during and in relation to a drug trafficking crime, the government must prove that the defendant committed the underlying drug count, though a separate conviction on that count is not necessаry.
United States v. Hill,
In its presentence rеport, the U.S. Probation Office noted the following with regard to the charges to which Mr. Graves pled guilty:
On April 22, 1995, a [Wichita Police Department] officer was conducting surveillance from the top of E & H at 2225 E. 9th Street, Wichita, Kansas. The officer observed several men standing under the overhead light exchanging crack cocaine. At one point, Bradley Graves apрroached a man standing under the light. The man said to Graves, “Do you got any?” Graves responded “No, I don’t have anymore, but hold on.” Graves then went across the street to retrieve something from a car. He returned to where the first man was standing. They both then went into E & H.
Approximately two minutes later, Graves and a man exited E & H. They were eventually approached by a third man, later identified as Otis Butler. Mr. Graves said to Butler, ‘Where have yоu been? I’ve been looking for you.” Butler responded, “I just got back.” Butler then showed Graves four to five crack rocks in his hand. He then put the crack rocks in his mouth. (Note: The officer could actually hear these conversations and see the crack rocks from his location.) Officers positioned nearby were informed that the men were leaving the area аnd that they had crack cocaine in their possession. In addition, the officer had noted that Graves had an abnormal bulge in his shorts which he believed to be a gun.
Officers identified themselvеs and attempted to apprehend the three men. The men took off running in different directions. Butler and Graves were apprehended. During the chase, Butler threw the crack rocks (.80 grams) and Graves dropped a loaded 9mm Firestar Plus handgun through his shorts. These facts form the basis of Counts 1 and 2 of the Second Superseding Indictment.
Because Mr. Graves did not object to the faсts contained in the presentenee report, they are deemed admitted.
United States v. Deninno,
Mr. Graves’ oral and written statements to the district court at his plea hearing also belie his claim of innoсence. The district court asked Mr. Graves on four different occasions whether he understood the counts to which he was pleading guilty, naming the offenses listed in those counts twice. Eaсh time, Mr. Graves assured the court that he understood the offenses at issue and wished to enter a guilty plea. Similarly, Mr. Graves’ written petition to enter a guilty plea represented to the сourt that he understood the charges to which he was pleading guilty, that he committed the acts alleged in those two charges, and that he did not believe he was innocent. Given these statements and the facts contained in the presentence report, Mr. Graves’ claim of innocence on appeal is *345 simply unpersuasive to establish the district court’s abusе of discretion in refusing to allow him to withdraw his plea.
For the same reasons, we also reject Mr. Graves’ argument on appeal that the district court should have allowed him to withdraw his plea because it lacked a factual basis regarding the § 924(c) charge, as required by Rule 11(f).
1
We recognize that Mr. Graves did not expressly provide a factual basis for his particiрation in any drug trafficking crime when questioned by the district court regarding his plea. When asked what he had done that would make him guilty of the § 924(e) charge, Mr. Graves responded, “I was around peоple that was selling drugs and knowledgeable of it, and had a weapon at the time that the drugs transactions was taking place.” We also recognize, however, that the district court сonsidering Mr. Graves’ plea was entitled to draw inferences from this statement, as would a jury at trial.
See United States v. LeDonne,
Moreover, we note that under Rule 11(f), a court may also satisfy thе factual basis requirement by examining the presen-tence report.
United States v. Elias,
Equally unpersuasive is Mr. Graves’ claim on appeal that the district court should have allowed him to withdraw his plea because he lacked adequate time to consider the government’s final plea proposal. In this instance, plea negotiations with the government began in August 1995, when the indictment was first filed. Thus, Mr. Graves had months to consider the implications of the plea negotiations in which he was involved. Because Mr. Graves did not ask for more time to consider his offer and admits receiving adequate advice from counsel regarding his plea, he cannot argue on appeal that his decision was too rushed or made without full information. We therefore conclude that Mr. Graves’ third argument on appeal, like the first two, is without merit and that the district court’s denial of his motion to withdraw was well within its sound discretion.
Having rejected Mr. Graves’ proffered justifications for withdrawing his plea, we pause only to note thаt this defendant would have been eligible for career offender sentencing had he been convicted of the offenses that were dismissed in this ease, resulting in over twenty years’ incarceration. That being the case, Mr. Graves lacks not only a “fair and just” reason to withdraw his plea, but a prudent one as well.
AFFIRMED.
Notes
. Rule 11(f) provides that a district court “should not enter a judgment upon [a guilty] plea without making such inquiry as shall satisfy it that there is a factual basis for the plea." Fed.R.Crim.P. 11(f).