[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-15000
OCTOBER 5, 2010
Non-Argument Calendar
JOHN LEY
________________________ CLERK
D. C. Docket No. 07-00144-CR-T-17-AEP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC T. SCOTT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 5, 2010)
Before EDMONDSON, BLACK and ANDERSON, Circuit Judges.
PER CURIAM:
Eric Scott (“Defendant”) appeals the district court’s denial of his request to
withdraw his guilty plea. Because Defendant has not demonstrated a fair or just
reason why he should be permitted to withdraw his plea, we affirm.
Defendant was indicted on one count of being a felon in possession of a
firearm. 18 U.S.C. § 922(g)(1); id. § 924(e)(1). After the district court denied
Defendant’s motion to suppress certain evidence, he entered an unwritten guilty
plea with the Magistrate Judge. The judge informed Defendant that, if the guilty
plea were accepted by the district court, Defendant would no longer have the right
to “freely change your mind and to withdraw [the] plea of guilty.” Defendant
stated that he understood, and his attorney implied that he understood the plea to
contain an appeal waiver.
After the district court accepted Defendant’s plea, Defendant -- represented
by new counsel -- moved to withdraw the guilty plea. He contends that he
mistakenly believed he had a right to appeal his denial of the motion to suppress
evidence. At a hearing on his motion to withdraw the plea, he conceded that the
district court accepted his plea before he moved to withdraw it, but argued that he
had a mistaken belief about the content and nature of his plea and any possible
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right to appeal. The government asserted that, because the plea had already been
accepted and entered, Defendant should only be permitted to withdraw it for a “fair
and just reason.” The government also noted that Defendant had been represented
by counsel and had entered a knowing and voluntary plea. Defendant’s former
attorney testified that he had explained to Defendant that a guilty plea would
foreclose an opportunity to appeal the motion to dismiss.
The Magistrate Judge issued a Recommendation and Report that
Defendant’s motion to withdraw his plea be denied. The magistrate concluded that
Defendant’s plea was knowing, voluntary, and chosen with the close support of
counsel. The magistrate also credited the testimony of Defendant’s lawyer that he
had explained the nature and consequences of the plea to Defendant. The
magistrate finally concluded that Defendant had offered no “fair and just reason”
justifying an exception to the “bright-line standard” of Federal Rule of Criminal
Procedure 11. The district court accepted the report and recommendation over
Defendant’s objection and sentenced him to 188 months’ imprisonment.
We review the denial of a motion to withdraw a guilty plea for abuse of
discretion. United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006). We
accept the magistrate’s factfindings unless they are clearly erroneous, and we defer
to his credibility determinations unless they are not believable. United States v.
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Moore, 525 F.3d 1033, 1040 (11th Cir. 2008) (citing United States v. Ramirez-
Chilel, 289 F.3d 744, 749 (11th Cir. 2002)). A district court’s choice between two
permissible views of the evidence cannot be clearly erroneous. N.A.A.C.P.,
Jacksonville Branch v. Duval County Sch., 273 F.3d 960, 965 (11th Cir. 2001).
A defendant may withdraw a guilty plea any time before it is accepted by the
district court. But after it is accepted, it may be withdrawn only for a “fair and just
reason.” See Fed. R. Crim. P. (11)(d)(1)–(d)(2)(B). To determine if a defendant
has met this burden, the district court considers the totality of the circumstances
and weighs the following factors: (1) whether close assistance of counsel was
available; (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. Brehm, 442 F.3d at
1298.
Defendant concedes that the district court accepted his guilty plea before he
filed his motion to withdraw it. He also concedes that the fact findings below are a
“challenging hurdle,” given that the Magistrate Judge based his decision, in part,
on the credibility of witnesses (including Defendant and his first lawyer) who
testified.
The four factors explained in Brehm do not weigh in favor of concluding
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that there is a “fair and just” reason to allow Defendant to withdraw his plea. He
was represented by counsel, with whom he had repeated discussions about his plea.
When asked by the magistrate, Defendant stated in open court that he understood
the nature of his plea, its consequences, and its finality. And while we give little
weight to the third and fourth Brehm factors when a plea was knowingly entered
with assistance of counsel, we also conclude that the adjudication of Defendant’s
appeal on the motion to suppress would not conserve judicial resources and might
prejudice the government. See United States v. Gonzalez-Mercado, 808 F.2d 796,
801 (11th Cir. 1988) (“Because the appellant received close and adequate
assistance of counsel and entered his plea knowingly and voluntarily . . . . we do
not give the [judicial resources] factor . . . considerable weight. Nor do we give
particular attention to the possibility of prejudice to the government caused by the
withdrawal of the plea.”).
Defendant has failed to demonstrate a fair and just reason why he should be
allowed to withdraw his guilty plea. And the Magistrate Judge’s credibility
determinations -- based upon live testimony -- are not clearly erroneous in the light
of the record. Therefore, the district court’s decision to accept the Magistrate
Judge’s recommendation was not an abuse of discretion.
AFFIRMED.
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