[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12465 ELEVENTH CIRCUIT
Non-Argument Calendar FEBRUARY 17, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 7:09-cr-00272-SLB-HGD-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
FREDRICK COLE,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(February 17, 2011)
Before BARKETT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Frederick Cole was charged with two counts of distributing crack cocaine,
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). The government later notified
Cole that it intended to seek an enhanced sentence, 21 U.S.C. § 851, based on
Cole’s prior felony drug convictions.
Cole agreed to plead guilty to both counts of the indictment without a
written plea agreement. Before entering his plea, Cole signed a “Guilty Plea
Advice of Rights Certification” in which he acknowledged that he understood his
rights, the charges against him, and the consequences of pleading guilty. At the
plea colloquy, the district court advised Cole of the rights he would forfeit by
pleading guilty and informed him that he faced a ten-year mandatory minimum
sentence for the first count of distributing crack and a mandatory term of life
imprisonment on the second count. Cole again indicated that he understood.
After confirming that Cole understood the charges against him and was satisfied
with counsel, the district court reminded him that he could withdraw his plea
before it was entered and go to trial. Cole then proceeded to plead guilty.
Two months later, Cole moved to withdraw his plea, arguing that his
attorney convinced him to plead guilty and cooperate with the government. The
district court denied the motion, finding that Cole had the benefit of counsel at the
plea colloquy and had entered the plea knowingly and voluntarily and thus had not
shown a “fair and just reason” to withdraw his plea.
The probation officer calculated Cole’s guideline sentencing range but
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noted that Cole faced a mandatory minimum sentence of life imprisonment on one
count. At sentencing, Cole told the court that he wanted to fire his lawyer and
alleged that counsel had misled him. The court rejected Cole’s claim and declined
to appoint new counsel.
The court then questioned whether Cole disputed his prior convictions that
had enhanced his sentence. Cole replied, “I don’t know nothing about no three
prior felonies.” The court advised Cole that there were only two prior offenses
and described the offenses. Cole repeated that he did not recall them. United
States Probation Officer Christie Stewart testified that she had obtained certified
convictions from the Circuit Court of Tuscaloosa. The government introduced
two documents, which Stewart then admitted were not certified copies, concerning
Cole’s 1998 marijuana-possession conviction and his 2002 drug-possession
conviction. The district court admitted the documents over Cole’s objection.
Based on the government’s substantial-assistance motion, U.S.S.G. § 5K1.1,
which permitted the court to disregard the mandatory-minimum sentence, the court
sentenced Cole to concurrent 300 month terms of imprisonment. Cole now
appeals, raising three arguments: (1) the district court abused its discretion in
denying his letter motion to withdraw his guilty plea; (2) the court abused its
discretion in denying his motion, made at the beginning of his sentencing hearing,
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to fire his attorney; and (3) the district court clearly erred in finding that Cole had
two prior felony drug convictions for purposes of a sentencing enhancement under
21 U.S.C. § 841(b)(1)(A). We address each in turn.
I.
We review a district court’s denial of a motion to withdraw a guilty plea
prior to sentencing for abuse of discretion. United States v. Medlock, 12 F.3d 185,
187 (11th Cir. 1994). We will reverse the district court’s decision only if it was
arbitrary or unreasonable. United States v. Najjar, 283 F.3d 1306, 1307 (11th Cir.
2002).
The district 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). The district court
should examine the totality of the circumstances surrounding the plea when
deciding whether a defendant has shown a “fair and just reason” for withdrawing
his guilty plea, considering four 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.” United States v.
Buckles, 843 F.2d 469, 471-72 (11th Cir. 1988) (internal citation omitted). When
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a defendant receives the close assistance of counsel and enters his plea knowingly,
we have declined to give much weight to the other factors. United States v.
Gonzalez-Mercado, 808 F.2d 796, 801 (11th Cir. 1987). A defendant who makes
statements under oath at a plea colloquy bears a heavy burden to demonstrate that
those statements were false. United States v. Rogers, 848 F.2d 166, 168 (11th Cir.
1988).
Here, the district court found that Cole had the close assistance of counsel in
entering his plea and that Cole entered his plea knowingly and voluntarily. Cole
has not shown that his statements at the plea colloquy were false. Moreover, the
court’s findings regarding the other factors did not show that the denial of Cole’s
motion was an abuse of discretion.
II.
When the district court conducts an inquiry into the merits of a criminal
defendant’s motion for new counsel, we review the district court’s ruling for abuse
of discretion. United States v. Calderon, 127 F.3d 1314, 1343 (11th Cir. 1997).
The right to counsel of choice under the Sixth Amendment “is
circumscribed in several important respects” and it “does not extend to defendants
who require counsel to be appointed for them.” United States v. Gonzalez-Lopez,
548 U.S. 140, 144 (2006) (quotations omitted). The right must be balanced
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against the countervailing interests involving effective administration of the
courts. United States v. Koblitz, 803 F.2d 1523, 1528 (11th Cir. 1986).
Accordingly, “there is no absolute and unqualified right to counsel of choice, even
where counsel is retained.” United States v. Silva, 611 F.2d 78, 79 (5th Cir.
1980).1
To determine whether the district court abused its discretion in denying the
motion, we consider (1) the timeliness of the motion, (2) the adequacy of the
district 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 (citation omitted).
Here, all three of the Calderon factors show that the district court did not
abuse its discretion in denying Cole’s motion to fire his attorney at the beginning
of the sentencing hearing, as the motion was not timely, the district court
conducted an adequate inquiry into the merits of the motion, and to the extent any
conflict existed, it did not result in a total lack of communication between Cole
1
Decisions handed down by the former Fifth Circuit before the close of business on
September 30, 1981 are binding precedent in the Eleventh Circuit. Bonner v. City of Prichard,
661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
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and his attorney that prevented an adequate defense. Accordingly, the district
court did not abuse its discretion in denying Cole’s motion.
III.
“We review for clear error the district court’s factual findings related to the
imposition of sentencing enhancements . . . .” United States v. Robertson, 493
F.3d 1322, 1329 (11th Cir. 2007) (quotations omitted). “A factual finding is
clearly erroneous when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” Id. at 1330 (quotations omitted).
Under 21 U.S.C. § 851(a), the government must file an information with the
court and serve a copy on the defendant before the defendant can be sentenced to
an increased punishment for having prior convictions. 21 U.S.C. § 851(a). If the
defendant “denies any allegation of the information of prior conviction . . . he shall
file a written response to the information.” Id. § 851(c)(1). “Any challenge to a
prior conviction, not raised by response to the information before an increased
sentence is imposed in reliance thereon, shall be waived unless good cause be
shown for failure to make a timely challenge.” Id. § 851(c)(2); United States v.
Sanchez, 138 F.3d 1410, 1416 (11th Cir. 1998). In addition, “[i]f the defendant
files no response to the information, or if the court determines, after hearing, that
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the person is subject to increased punishment by reason of prior convictions, the
court shall proceed to impose sentence upon him as provided by this part.” 21
U.S.C. § 851(d)(1).
Here, Cole’s failure to respond to the information filed by the government
resulted in a waiver of his ability to challenge the convictions described therein.
Nothing in the record indicates that Cole filed a response to the government’s
information. Thus, pursuant to § 851(c)(2) and (d)(1), Cole waived his challenges
to the convictions and cannot challenge his sentence by contending that the district
court erred in finding that Cole had the convictions described in the information.
Accordingly, we affirm Cole’s conviction and sentences.
AFFIRMED.
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