United States v. Kyle Jennings , 674 F. App'x 862 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-15189
Non-Argument Calendar
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D.C. Docket No. 6:14-cr-00232-CEM-KRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KYLE JENNINGS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(December 27, 2016)
Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Kyle Jennings appealed his conviction after pleading guilty to receipt of
child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1).
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Specifically, he argued that the district court abused its discretion in denying
Jennings’s motion to withdraw or set aside his plea because a sufficient factual
basis did not support the plea and he did not knowingly and voluntarily enter into
the plea.
We review the district court’s denial of a motion to withdraw a guilty plea
for an abuse of discretion. United States v. Symington, 781 F.3d 1308, 1312 (11th
Cir. 2015). The district did not abuse its discretion unless its decision was
arbitrary or unreasonable. United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir.
2006) (quotation omitted). The defendant-movant carried the burden on a motion
to withdraw a guilty plea. A defendant seeking to withdraw a guilty plea after its
acceptance but prior to sentencing must demonstrate a “fair and just reason” for
doing so. Fed. R. Crim. P. 11(d)(2)(B).
In determining whether a defendant met his burden of showing a “fair and
just reason” to withdraw a guilty plea, a district court may consider the totality of
circumstances surrounding the plea, including whether: (1) the close assistance of
counsel was available, (2) the plea was knowing and voluntary, (3) judicial
resources would be conserved, and (4) the government would be prejudiced if the
defendant were allowed to withdraw his guilty plea. United States v. Buckles, 843
F.2d 469, 471–72 (11th Cir. 1988). However, the district court needed not find
prejudice to the government before denying a defendant’s motion to withdraw. Id.
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at 474. An appellant’s failure to satisfy the first two factors of the Buckles analysis
rendered analyzing the remaining factors unnecessary. See United States v.
Gonzalez-Mercado, 808 F.2d 796, 801 (11th Cir. 1987) (affirming a district court’s
denial of a motion to withdraw a guilty plea based on the first two factors, but
declining to give “considerable weight” to the third factor or “particular attention”
to the possibility of prejudice to the government”).
In determining whether a plea was knowing and voluntary, the district court
must ensure compliance with the core concerns of Fed. R. Crim. P. 11, including
that the defendant: “(1) enter[ed] his guilty plea free from coercion, (2)
underst[ood] the nature of the charges, and (3) underst[ood] the consequences of
his plea.” United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005).
Additionally, the “good faith, credibility, and weight of a defendant’s assertions in
support of a motion to withdraw a guilty plea [we]re issues for the trial court to
decide.” United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006).
Statements made under oath by a defendant during a plea colloquy received a
strong presumption of truthfulness. United States v. Medlock, 12 F.3d 185, 187
(11th Cir. 1994). Consequently, a defendant bore “a heavy burden” to show that
his statements under oath were false. United States v. Rogers, 848 F.2d 166, 168
(11th Cir. 1988).
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We have also noted that “the timing of [an] appellant’s motion to withdraw
also deserves … consideration.” Gonzalez Mercado, 808 F.2d at 801. “The timing
between entry of the plea and motion to withdraw the plea may be indicative of the
defendant’s motivation.” Id. To grant a motion to withdraw simply because a
defendant was weary of an anticipated harsher-than-contemplated sentence would
be to permit an appellant to use the guilty plea as a means of testing the weight of a
potential sentence—a primary ground for denying plea changes. Id. An appellant
“should not be allowed to circumvent the finality of Rule 11” when the motion to
withdraw was filed because the appellant anticipated a harsher-than-contemplated
sentence. Id.
Upon review of the record and consideration of the briefs of the parties, we
affirm that the district court did not abuse its discretion in denying Jennings’s
motion to withdraw his guilty plea. The record reflected ample evidence for the
district court to conclude that Jennings had close assistance of counsel leading up
to his guilty plea. Jennings stated that his attorney fully and completely discussed
the case with him and that he was completely satisfied with his attorney’s advice
and representation.
The record demonstrated that Jennings’s plea was knowingly made and that
he understood the nature of the charges against him. The district court did not err
in concluding that the record belied Jennings’s claim that his plea was invalid
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under Fed. R. Crim. P. 11(b)(3) because it was supported by an insufficient factual
basis. Jennings’s plea agreement was unequivocal. Jennings endorsed the facts
recited within the plea agreement under oath by initialing each page and signing in
conclusion. The written agreement listed the elements of the offense, including that
Jennings “knowingly” received items of child pornography and that he believed
such items constituted child pornography. The pleading indicated that Jennings
understood the nature of the offense to which he pled guilty. The factual basis
accompanying the plea agreement—which Jennings also initialed—alleged that
Jennings used computers to receive child pornography, that he stored 4000 images
and 101 movies containing child pornography, and that his “voluminous” child
pornography collection consisted of videos recording the sexual abuse of children.
During his plea proceedings, Jennings twice confirmed to the court that he
reviewed the entire written plea agreement with his attorney and he initialed every
page. He admitted he was entering the plea voluntarily and that he had adequate
time to communicate with his lawyer. After the government proffered facts
demonstrating the quantity of images containing child pornography on Jennings’s
computers, the court specifically asked Jennings if he objected to any of the
government’s proffered facts. Jennings responded negatively. At the close of the
proceeding, Jennings failed to object when the court found that he entered into his
plea intelligently, freely, and voluntarily, and that a factual basis substantiated his
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plea. In order for Jennings’s argument to carry the day, the district court would
have to render invalid the signed plea agreement, Jennings’s sworn endorsement of
the plea agreement, and the entirety of the dialogue of his plea proceeding. As
such, the district court did not abuse its discretion in concluding that Jennings’s
argument lacks merit.
Additionally, the timing of Jennings’s motion to withdraw his plea did not
suggest a “swift change of heart.” Gonzalez-Mercado, 808 F.2d at 801. Jennings
filed his motion to withdraw his plea approximately three months after his guilty
plea and on the heels of receiving the presentence investigation report. The district
court accurately noted that it was not until the eve of Jennings’s sentencing
hearing, six days after his presentence report issued recommending a guideline
range of 97–121 months, the low end of which was 37 months higher than the
mandatory minimum, that Jennings claimed his plea was not knowing and was not
supported by an adequate factual basis.
The district court did not abuse its discretion in denying Jennings’s motion
to withdraw his guilty plea. The court correctly considered that the timing of
Jennings’s attempted withdraw warranted consideration. The plea was supported
by a sufficient factual basis, as demonstrated by the pleadings signed and
acknowledged by Jennings, as well as the assertions he made during the colloquy.
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In addition, the record demonstrates that Jennings understood the nature of the
charges against him. Accordingly, we affirm Jennings’s conviction.
AFFIRMED.
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