[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 04-16273 ELEVENTH CIRCUIT
MAY 31, 2005
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D.C. Docket No. 04-00002-CR-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMON T. WRIGHT,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(May 31, 2005)
Before ANDERSON, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Ramon T. Wright appeals his conviction and 168-month sentence, imposed
after he pled guilty to distributing cocaine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B). On appeal, Wright argues that the district court erred by denying his
motion to withdraw his guilty plea. We review “a district court’s denial of a motion
to withdraw a plea for an abuse of discretion.” United States v. Cesal, 391 F.3d 1172,
1179 (11th Cir. 2004). We “will only reverse a district court’s denial of a motion to
withdraw if it is arbitrary and unreasonable.” Id. (internal quotations and citation
omitted). After thorough review of the record and careful consideration of the
parties’ briefs, we find no reversible error and affirm.
The relevant facts are straightforward. Pursuant to a written plea agreement,
Wright pled guilty to distribution of five grams or more of cocaine, in violation of 21
U.S.C. § 841(a)(1) (Count 1), and, in return, the government agreed to dismiss the
other three drug-distribution counts of the indictment. The plea agreement provided
the following, inter alia:
the offense level and criminal history category determined by the United
States Probation Office and the Court may differ from that estimated or
projected by defendant’s counsel or the United States Attorney. The
defendant advises the Court that the defendant understands that if
the relevant conduct, guideline sentencing range, or sentence
imposed by the Court is more or greater than the defendant
expected or, in the case of relevant conduct, is found to be more
extensive than the defendant has admitted to, the defendant will still
have no absolute right to withdraw his guilty plea.
(bolded emphasis in original).
At the plea-colloquy hearing, Wright stated that he had discussed with his
attorney the charges pending against him and that he was fully satisfied with his legal
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representation. Moreover, defense counsel stated that he had reviewed all aspects of
the case with Wright. The district court then explained the charge to Wright and
informed him that, by pleading guilty, he faced a maximum prison term of not less
than 5 years and not more than 40 years. In addition, the court advised Wright that
he would be sentenced pursuant to the Sentencing Guidelines. Wright,
acknowledging that his plea was knowing and voluntary, stated that he was not
coerced into entering the plea agreement, and that he fully understood the
consequences of entering a guilty plea.
As a factual basis for Wright’s plea, the government presented the testimony
of Drug Enforcement Administration (DEA) Agent Livingston who described the
conduct and drug quantities underlying both Count 1 and the other three counts of the
indictment. Specifically, Livingston stated that, with respect to Count 1, Wright
distributed a little over 11 grams of cocaine. As for the other three cocaine-
distribution counts, Agent Livingston testified that Count 2 involved 10.7 grams,
Count 3 involved 15 grams, and Count 4 involved 21.2 grams.
The district court then explained to Wright that even though he pled guilty to
only Count 1, the additional drug quantities from Counts 2 through 4 could be used
to calculate his sentence. When the district court asked whether Wright disagreed
with any of Agent Livingston’s testimony, Wright responded in the negative, and
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even affirmed that Agent Livingston had testified correctly. The district court then
more specifically asked whether there was any dispute on the drug quantities to which
Agent Livingston had testified, and Wright again responded no. Wright’s criminal
history also was discussed, and his counsel indicated that, to the best of his
knowledge, Wright had only one prior conviction, for statutory rape. Wright then
proceeded to sentencing.
The Presentence Investigation Report (PSI) initially assigned Wright a base
offense level of 32, pursuant to U.S.S.G. § 2D1.1(c)(4), based on 58.3 grams of
cocaine base. Under U.S.S.G. § 4A1.1(a), Wright received (1) three criminal history
points as a result of a 1991 Georgia conviction for distribution of cocaine; (2) three
criminal history points as a result of a 1991 Georgia conviction for statutory rape; and
(3) three criminal history points as a result of a 1991 Georgia conviction for
possession of cocaine, making terroristic threats, and obstruction of a law
enforcement officer. As a result of these previous convictions, Wright was classified
as a career offender, under U.S.S.G. § 4B1.1, and assigned an offense level of 34 and
a criminal history category of VI. After a three-level downward adjustment for
acceptance of responsibility, U.S.S.G. § 3E1.1, Wright’s adjusted offense level was
31. With a criminal history category of VI, his Guidelines sentencing range was 188
to 235 months’ imprisonment.
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After receiving the PSI, but before sentencing, Wright filed a motion to
withdraw his guilty plea. In that motion, Wright’s attorney stated that, based upon
the charge contained in Count 1 of the indictment, he had advised Wright of the
applicable guidelines and his possible sentence. Counsel stated, however, that this
advice had been improper because, at the time of the plea, he was unaware that the
PSI would include a number of prior convictions that would justify a career-offender
classification.
In the alternative, counsel argued that Wright was entitled to a downward
departure because the PSI did not accurately reflect his criminal history because: (1)
his prior sentences were related, and, pursuant to U.S.S.G. § 4A1.2(a)(2), prior
sentences imposed in related cases are to be treated as one sentence; (2) he could not
be deemed a career offender because “a common scheme was present with respect to
every charge;” and (3) his criminal history category significantly over-represented the
seriousness of the crimes that he had committed, especially in light of the fact that he
was 18 or 19 years old at the time of their commission.
The government responded that the district court adhered to the requirements
of Fed. R. Crim. P. 11 when it accepted Wright’s plea, and that Wright did not meet
his burden to offer a fair and just reason for the withdrawal of his guilty plea, as
required under Rule 11(d), since the record established that: (1) the plea was
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voluntarily entered; (2) there was a significant factual basis to support the plea of
guilty; and (3) Wright had the benefit of close assistance from experienced counsel.
The government also asserted that counsel’s incorrect estimate of the sentence did not
amount to a fair and just reason for the withdrawal of the guilty plea, especially in
light of the fact that, during the plea proceedings, Wright correctly was advised of the
statutory maximum penalty and was made aware that the sentencing estimates
provided by his counsel potentially could differ from those determined by the court.
The district court denied Wright’s motion to withdraw his guilty plea “for all
of the reasons articulated in the government’s response.” However, the court noted
Wright’s alternative motion for a downward departure and advised that it would rule
on that issue at sentencing.
During the sentencing hearing, Wright’s counsel stated that the discovery he
had received from the government showed only Wright’s prior convictions for
statutory rape and terroristic threats. The government verified that the Georgia
criminal history that was taken off the computer database was not accurate and
“[r]egrettably . . . did not reflect all of the defendant’s prior convictions.” The district
court responded that “the one person who knows better than anyone else about . . . his
conviction record is the defendant himself.” Nevertheless, the district court stated
that it had “developed a sentiment” that “there was a mistake of fact, at least in part,
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about the background.” The district court also noted that there had been no arrests
between the time of Wright’s most recent arrest in 2004, and when his parole
terminated in 1996. Based on these findings, and without objection from the
government, the district court reduced Wright’s criminal history category by one
level, down to V, because the “criminal history category of IV . . . overstates the
actuality of his true criminal history.” After this adjustment, the sentencing range was
168 to 210 months’ imprisonment. The district court then imposed a 168-month term
of imprisonment. This appeal followed.
Under Fed. R. Crim. P. 11, a defendant may withdraw a guilty plea before a
sentence is imposed if the defendant shows a “fair and just reason” for requesting the
withdrawal. Fed. R. Crim. P. 11(d)(2)(B) (2003). While this portion of the rule is to
be construed liberally, there is no absolute right to have a guilty plea withdrawn.
United States v. Buckles, 843 F.2d 469, 471 (11th Cir. 1988). To determine whether
the defendant has given a fair and just reason for withdrawal, the district court
examines the totality of the circumstances, including: “(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
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States v. Freixas, 332 F.3d 1314, 1318 (11th Cir. 2003) (citations and internal
quotations omitted).
First, Wright had the close assistance of counsel throughout the district court
proceedings. At the Rule 11 hearing, Wright affirmed that he had discussed with
counsel the charges and the case in general and was fully satisfied with his counsel’s
representation. Wright’s counsel also advised the court that he had reviewed all
aspects of the case with Wright. Second, Wright’s plea was knowing and voluntary --
he indicated at the Rule 11 hearing that he was not coerced into entering the plea
agreement and that he understood the consequences of entering a guilty plea. Also
at the Rule 11 hearing, the district court specifically addressed the statutory maximum
that Wright faced and pointed out that his sentence would be calculated under the
Sentencing Guidelines. Notably, the plea agreement unambiguously provided that
the sentencing estimates provided by Wright’s counsel might differ from the sentence
ultimately imposed by the court. Moreover, allowing Wright to withdraw his guilty
plea just prior to the imposition of his sentence would prejudice the government. See
Buckles, 843 F.2d at 474 (noting that the court could consider “the time, money, and
effort the government would have to devote to reassembling witnesses and evidence
that were allowed to scatter after” the guilty plea).
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On this record, the district court did not abuse its discretion by denying
Wright’s motion to withdraw based on his attorney’s incorrect sentencing-range
estimate. Cf. United States v. Bradley, 905 F.2d 359, 360 (11th Cir. 1990) (holding
that, “[t]o the extent Bradley claimed his guilty plea was based on his attorney’s
estimate of the sentence and offense level, the claim did not warrant withdrawal of
the guilty plea where Bradley acknowledged to the court that he understood the
possible maximum sentence for his crime to be greater than the sentence the court
ultimately imposed”). Accordingly, we affirm Wright’s conviction and sentence.1
AFFIRMED.
1
We are unpersuaded by Wright’s argument that the district court violated Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington,
542 U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), when it determined drug quantity in
calculating his sentence. Because he raises this claim for the first time on appeal, we review the
issue only for plain error. See United States v. Olano, 507 U.S. 725, 731-32, 113 S. Ct. 1770, 1776,
123 L. Ed. 2d 508 (1993); United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005)
(applying plain error review to newly raised Blakely claim). We will correct plain error only where
(1) there is an error; (2) the error is plain or obvious; (3) the error affects the defendant's substantial
rights in that it was prejudicial and not harmless; and (4) the error seriously affects the fairness,
integrity, or public reputation of a judicial proceeding. See United States v. Chisholm, 73 F.3d 304,
307 (11th Cir. 1996).
After he pled guilty to distributing 5 grams or more of cocaine base, Wright faced a 40-year
statutory maximum term, under 21 U.S.C. § 841(b)(1)(B)(iii). The PSI set his offense level at 32,
based on the attributable drug quantity. However, based on his status as a career offender, not the
drug quantity to which he pled, U.S.S.G. § 4B1.1(b) provided for an offense level at 34. Thus, any
judicial factfinding on drug quantity did not result in an unconstitutional increase to his offense level,
within the meaning of Apprendi or its progeny. In short, we can find no plain error on this basis.
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