United States v. Arrington Oliver , 316 F. App'x 877 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 4, 2008
No. 07-15740 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-20617-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARRINGTON OLIVER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 4, 2008)
Before BLACK, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Arrington Oliver appeals his conviction for possession of a firearm and
ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and
924(e). On appeal, Oliver argues that the district court abused its discretion in
failing to conduct an evidentiary hearing on his motions to withdraw his guilty
plea. Oliver contends an evidentiary hearing was necessary to determine whether
his trial counsel could adequately represent him in light of his claim that his
counsel lied to him about his potential sentence in order to have him plead guilty.
Next, Oliver argues that the district court erred in denying his pro se motions to
withdraw his guilty plea because he asserted a “fair and just reason” for requesting
the withdrawal. Lastly, Oliver argues that the district court erred in denying his
motions to discharge his attorney and appoint new counsel because his attorney
coerced him into pleading guilty and rendered ineffective assistance of counsel.
I.
We typically review a district court’s refusal to conduct an evidentiary
hearing on a motion to withdraw a guilty plea for an abuse of discretion. United
States v. Stitizer, 785 F.2d 1506, 1514 (11th Cir. 1986). A district court’s refusal
to conduct an evidentiary hearing on a motion to withdraw a guilty plea does not
amount to an abuse of discretion if the court conducted an extensive Rule 11
inquiry prior to accepting the defendant’s guilty plea. Id. “Federal Rule of
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Criminal Procedure 11 imposes upon a district court the obligation to conduct a
searching inquiry into the voluntariness of a defendant’s plea of guilty.” Id. at
1513. Rule 11 requires that (1) the guilty plea be free from coercion; (2) the
defendant understand the nature of the charges; and (3) the defendant know the
consequences of the plea. Id. There are no mechanical rules for this inquiry, but
“the more complex or doubtful the situation, the more searching the inquiry.” Id.
Here, the district court conducted extensive inquiries during the Rule 11 plea
colloquy before accepting Oliver’s guilty plea. First, Oliver stated that his plea
was free from force, coercion, or threats and that his plea was given voluntarily.
Second, Oliver stated that he understood the nature of the charges against him, as
he told the court he had a sound mind, had discussed the charges with his attorney,
and confirmed that he understood the elements the Government would have to
prove. Third, Oliver knew the consequences of his plea because the court
reviewed the potential sentence and penalties with him and told him that Bharathi
could not guarantee his sentence.
Additionally, the district court considered Oliver’s motions to withdraw his
guilty plea at hearings subsequent to the plea colloquy. At a subsequent hearing,
Oliver changed his mind again and stated that he did not want to withdraw his
guilty plea. Also, during the sentencing hearing, the district court examined factors
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and concluded that Oliver failed to show a “fair and just reason” for withdrawing
his guilty plea.
Even if we assume arguendo that Oliver properly raised this issue before the
district court, we note that the court conducted an extensive Rule 11 inquiry prior
to accepting Oliver’s guilty plea, and held other hearings prior to sentencing on his
motions to withdraw his plea. Accordingly, it did not abuse its discretion by
failing to conduct one expressly for the purpose of admitting evidence on the basis
for withdrawal.
II.
We review a district court’s denial of a motion to withdraw a guilty plea for
abuse of discretion. United States v. Freixas, 332 F.3d 1314, 1316 (11th Cir.
2003). “The district court may be reversed only if its decision is arbitrary or
unreasonable.” United States v. Buckles, 843 F.2d 469, 471 (11th Cir. 1988)
Pursuant to Rule 11(d), a court may permit a defendant to withdraw a guilty
plea before the court imposes a sentence if the defendant “can show a fair and just
reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). In
determining whether a defendant has shown a “fair and just reason,” a district court
may consider the totality of circumstances surrounding the plea, including the
following factors: “(1) whether close assistance of counsel was available;
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(2) whether the plea was knowing and voluntary; (3) whether judicial resources
would be conserved; and (4) whether the government would be prejudiced if the
defendant were allowed to withdraw his plea.” Buckles, 843 F.2d at 472 (citations
omitted). Further, the good faith, credibility, and weight of the defendant’s
assertions in support of his motion to withdraw are left to the district court to
decide. Id. Moreover, the district court is permitted to make a strong presumption
of truth regarding statements made by a defendant during a plea colloquy. United
States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994).
In this case, the district court did not err in denying Oliver’s motions to
withdraw of his guilty plea because it made factual findings on each of the Buckles
factors. First, the court found that Oliver was “counseled by competent and very
effective defense counsel” during his guilty plea. The record indicates that Oliver
received close assistance of counsel because trial counsel, in scheduling the change
of plea hearing, stated that she had met with Oliver “numerous times” and had
“developed a close attorney-client relationship.” Further, Oliver testified at the
change of plea hearing that he was “very satisfied” with his counsel.
Next, the district court found that Oliver “knowingly and voluntarily entered
a guilty plea after a full discussion.” The records supports this finding, as Oliver
stated that he wanted to plead guilty at the plea colloquy and at a subsequent
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hearing. In regards to whether judicial resources would be conserved, the district
court found that allowing Oliver to withdraw his plea would not conserve
resources of the court or parties. Lastly, the court found that, although the
Government would not suffer “great prejudice,” it would suffer “some prejudice.”
Because Oliver did not meet his burden of demonstrating a fair and just reason for
withdrawing his guilty plea, he failed to show the district court abused its
discretion by denying his pro se motions to withdraw his guilty plea.
III.
We review a denial of a motion for new counsel for abuse of discretion.
United States v. Calderon, 127 F.3d 1314, 1343 (11th Cir. 1997). “Unless a Sixth
Amendment violation is shown, whether to appoint a different lawyer for an
indigent criminal defendant who expresses dissatisfaction with his court-appointed
counsel is a matter committed to the sound discretion of the district court.” United
States v. Young, 482 F.2d 993, 995 (5th Cir. 1973).1 An indigent criminal
defendant has an absolute right to be represented by counsel, but he does not have
a right to demand a different lawyer be appointed, except upon a showing of good
1
See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc)
(holding that all decisions handed down by the Fifth Circuit prior to October 1, 1981, are binding
precedent in the Eleventh Circuit).
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cause. Id. Good cause requires a defendant to show a conflict of interest, a
complete breakdown in communication, or an irreconcilable conflict. Id.
In determining whether the district court abused its discretion in denying a
motion for new counsel, we consider the following factors: “(1) the timeliness of
the motion; (2) the adequacy of the court’s inquiry into merits of the motion; and
(3) whether the conflict was so great that it resulted in a total lack of
communication between the defendant and his counsel thereby preventing an
adequate defense.” Calderon, 127 F.3d at 1343. Even if the district court abused
its discretion, the defendant must show that the trial counsel continuing to
represent him during sentencing prejudiced him. Id. If the defendant cannot show
prejudice, then the error was harmless. Id. “To successfully demonstrate
prejudice, [the defendant] must show that counsel’s performance was ‘not within
the range of competence demanded of attorneys in criminal cases’ and that ‘but
for’ counsel’s continued representation at the sentencing hearing, ‘the result of the
proceeding would have been different.’” Id. (citations omitted).
Here, there is no argument that the motions were untimely. The record
indicates that the district court adequately considered Oliver’s motions for new
counsel during the two subsequent hearings and at sentencing. During the
sentencing hearing, the court found trial counsel continued to do a “conscientious
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and competent job” representing Oliver. The record supports this finding, as trial
counsel continued to contact Oliver in preparation for the sentencing hearing.
Even if the district court abused its discretion, Oliver failed to show that the
court’s refusal to appoint new counsel prejudiced him. See Calderon, 127 F.3d at
1343. Trial counsel continued to argue on Oliver’s behalf on a variety of issues at
the sentencing hearing. Oliver makes no specific assertions of prejudice on appeal,
and there is nothing in the record that indicates the outcome of the sentencing
hearing would have been different had Oliver been represented by different
counsel. Because Oliver failed to show that the district court’s refusal to remove
his counsel prejudiced him, he did not establish that the district court abused its
discretion by denying his motions to discharge his attorney and to appoint new
counsel. Accordingly, we affirm Oliver’s conviction.
AFFIRMED.
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