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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-15087
Non-Argument Calendar
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D.C. Docket No. 0:18-cr-60127-WPD-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TRENARD CALDWELL,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 26, 2020)
Before GRANT, LUCK and BLACK, Circuit Judges.
PER CURIAM:
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Trenard Caldwell appeals his convictions and 161-month total sentence for
being a felon in possession of a firearm, possession of unauthorized access devices,
aggravated identity theft, and possession of a detectable amount of
methamphetamine with intent to distribute. Caldwell asserts five issues on appeal,
which we address in turn. After review, we reverse and remand to allow the
district court to modify Caldwell’s sentence so it does not run afoul of the statutory
maximum, but affirm as to all other issues.
I. DISCUSSION
A. Motion to Withdraw Guilty Plea
First, Caldwell contends the district court abused its discretion when it did
not allow him to withdraw his guilty plea because he did not have close assistance
of counsel when he entered the plea and his plea was not knowing and voluntary.
After the district court accepts the plea and before sentencing, the defendant may
withdraw a guilty plea if (1) the district court rejects the plea agreement, or (2) “the
defendant can show a fair and just reason for requesting the withdrawal.” Fed. R.
Crim. P. 11(d)(2)(A)-(B). “There is no absolute right to withdraw a guilty plea.”
United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). In determining if the
defendant has met his burden, a district court may consider the totality of the
circumstances surrounding the plea, including the following factors: “(1) whether
close assistance of counsel was available; (2) whether the plea was knowing and
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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, 472 (11th Cir. 1998) (citation
omitted). The good faith, credibility, and weight of the defendant’s representations
in support of the motion to withdraw are issues for the trial court to decide. Id.
The district court held a hearing on Caldwell’s motion to withdraw his guilty
plea in which both Caldwell and his attorney testified. After hearing the testimony,
the district court denied the motion, finding that when Caldwell pled guilty, he
understood and confirmed that (1) he would not be allowed to withdraw his plea,
(2) he did not have to follow his attorney’s advice, (3) he wanted to plead guilty
and give up all defenses, (4) no threats or promises were made to him, and (5) he
fully understood what he was doing and had no questions.
The district court did not abuse its discretion in denying Caldwell’s motion
to withdraw his guilty plea because he failed to show that he did not have close
assistance of counsel and the evidence supports that his plea was knowing and
voluntary. See United States v. McCarty, 99 F.3d 383, 385 (11th Cir. 1996)
(stating we will disturb the district court’s decision to deny a defendant’s motion to
withdraw a guilty plea only when it constitutes an abuse of discretion).
The district court found Caldwell’s attorney, Richard Merlino, credible
during the hearing on Caldwell’s motion. During that hearing, Merlino testified
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that he had met with Caldwell four to six times and his investigator had met with
Caldwell six to eight times in preparation for trial. Merlino testified that he
reviewed the discovery with Caldwell and they had discussed that the Government
had a “reasonable likelihood of conviction” if the case proceeded to trial.
In addition, both the district court’s plea colloquy and the testimony at the
hearing on the motion to withdraw establish Caldwell knowingly and voluntarily
entered his plea. See Medlock, 12 F.3d at 187 (stating there is a strong
presumption that statements made during the plea colloquy are true). The district
court confirmed Merlino explained the Sentencing Guidelines to Caldwell, that
Caldwell agreed with the strategy of an open plea, and that Caldwell understood
the maximum amount of prison time he could serve. Moreover, the district court
confirmed that Caldwell’s plea was done freely and voluntarily and that he
understood that he could not come back to the district court and argue that he did
not understand, made a mistake, or that his lawyer provided him with bad advice.
Caldwell failed to meet the heavy burden of showing the statements he made,
under oath, during his change or plea hearing were false. See United States v.
Rogers, 848 F.2d 166, 168 (11th Cir. 1988) (explaining a defendant bears a heavy
burden to show that his statements under oath were false). The final two Buckles
factors also weigh against the withdrawal of the plea, and Caldwell concedes that
whether judicial resources would be conserved weighs against him.
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B. Ineffective Assistance of Counsel
Second, Caldwell asserts he received ineffective assistance of counsel. To
make a successful claim of ineffective assistance of counsel, a defendant must
show both that (1) his counsel’s performance was deficient; and (2) the deficient
performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). Failure to establish either prong is fatal and makes it unnecessary to
consider the other. Id. at 697. A counsel’s performance is measured under an
objective standard of reasonableness, and there is a strong presumption that
counsel’s conduct falls within the range of reasonable performance. Id. at 687,
690. Prejudice occurs when there is a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id.
As an initial matter, the record is sufficiently developed to permit this Court
to consider Caldwell’s ineffective assistance of counsel claim. See United States v.
Bender, 290 F.3d 1279, 1284 (11th Cir. 2002) (explaining while we generally do
not consider claims of ineffective assistance of counsel raised on direct appeal, we
will do so if the record is sufficiently developed). Caldwell raised the claim in his
amended motion to withdraw his guilty plea, and the district court held an
evidentiary hearing where Caldwell and Merlino testified regarding the issue.
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Caldwell has failed to establish the district court erred when it denied his
ineffective assistance of counsel claim. See id. (stating whether a criminal
defendant’s trial counsel was ineffective is a mixed question of law and fact,
subject to de novo review). Merlino testified that he reviewed the discovery, went
through the evidence with Caldwell, attempted to contact witnesses, and found he
could not file a motion to suppress in good faith. In addition, Merlino testified he
spoke with Caldwell about entering the guilty plea and the consequences of
entering a guilty plea. Caldwell has failed to present evidence to show the
likelihood of the district court allowing him to withdraw his guilty plea would have
increased had Merlino taken different actions. See Harrington v. Richter, 562 U.S.
86, 112 (2011) (the petitioner must show the likelihood of a different result is
substantial). Thus, Caldwell has failed to establish that Merlino acted deficiently
or that Merlino’s actions prejudiced his defense. See Strickland, 466 U.S. at 687.
C. Criminal History Calculation
Third, Caldwell argues the district court erred at sentencing when it assessed
him a criminal history point for a previous grand theft of a motor vehicle
conviction, because that conviction was part of the relevant conduct of his current
charges. The district court is required to assess one criminal history point for each
“prior sentence” of less than 60 days of imprisonment. U.S.S.G. § 4A1.1(c). The
term “prior sentence” means “any sentence previously imposed upon adjudication
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of guilt . . . for conduct not part of the instant offense.” U.S.S.G. § 4A1.2(a)(1).
Relevant conduct includes “all acts and omissions committed . . . by the defendant
. . . that occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid detection or
responsibility for that offense.” U.S.S.G. § 1B1.3(a)(1)(A).
The district court did not clearly err when it assessed one criminal history
point to Caldwell for the grand theft of a motor vehicle. See United States v.
Kinard, 472 F.3d 1294, 1297 n.3 (11th Cir. 2006) (stating a district court’s factual
findings are reviewed for clear error and its application of the Guidelines to those
facts are reviewed de novo). The district court found the grand theft of the motor
vehicle was not part of the relevant conduct of this case because it was a separate
crime and it occurred on a separate date from the convictions in this case. In
addition, the grand theft of the motor vehicle did not occur during the commission
of the offenses in this case and was not done in order to avoid detection or
responsibility for those offenses. Thus, under the Guidelines, it is not relevant
conduct, and the district court did not clearly err when it assessed Caldwell one
criminal history point. U.S.S.G. § 1B1.3(a)(1)(A).
D. Sentence Greater than Statutory Maximum
Fourth, Caldwell asserts the district court erred when it imposed a 161-
month total sentence which was greater than the maximum statutory sentence
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permitted. The district court sentenced Caldwell at the high end of his Guidelines
range, 137 months’ imprisonment on Counts 1, 2, 4, and 5, to run concurrently.
The district court further sentenced Caldwell to 24 months’ imprisonment on
Count 3, to run consecutively. Caldwell contends the maximum prison sentence
permitted by law on Counts 1, 2, and 5 1 is 120 months’ imprisonment. See 18
U.S.C. § 924(a)(2) (Count 1); 18 U.S.C. § 1029(c)(1)(A)(i) (Counts 2 and 5).
The Government concedes that Caldwell correctly argues the district court
erred when it imposed a 137-month sentence as to Counts 1, 2, and 5. The
Government contends the district court should have structured the sentence by
imposing concurrent terms of 120 months’ imprisonment as to Counts 1, 2, and 5,
and a 137-month sentence for Count 4, which carries a statutory maximum of 240
months. See 21 U.S.C. § 841(b)(1)(C).
We have held that Federal Rule of Criminal Procedure 36 “may not be used
to make a substantive alteration to a criminal sentence.” United States v. Portillo,
363 F.3d 1161, 1164 (11th Cir. 2004) (quotations omitted). In addition, we have
held that Rule 36 permits courts to “correct an error in the record arising from [an]
oversight. Id. at 1165.
1
Caldwell’s counts of conviction are as follows: Count 1—possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g)(1); Count 2—possession of unauthorized
access devices, in violation of 18 U.S.C. § 1029(a)(3); Count 3—aggravated identity theft, in
violation of 18 U.S.C. § 1028A(a)(1); Count 4—possession of methamphetamine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1); and Count 5—possession of unauthorized access
devices, in violation of 18 U.S.C. § 1029(a)(3).
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The district court erred in how it structured Caldwell’s sentence because it
sentenced him to 137-months’ imprisonment as to Counts 1, 2, and 5, when the
statutory maximum sentence for those counts is 120 months’ imprisonment. See
United States v. Mazarky, 499 F.3d 1246, 1248 (11th Cir. 2007) (reviewing the
legality of a sentence de novo). However, this error is one that can be corrected,
pursuant to Rule 36, as the correction will not result in a substantive alteration to
Caldwell’s sentence. See Portillo, 363 F.3d at 1164-65. The district court could
sentence Caldwell to 120-months’ imprisonment as to Counts 1, 2, and 5 to run
concurrently with a 137-month sentence as to Count 4, and an additional 24
months to run consecutively as to Count 3 for a total sentence of 161 months’
imprisonment. Allowing the district court to enter a new judgment, pursuant to
Rule 36, will allow the district court to correct an oversight in how it announced
Caldwell’s sentence, without making the sentence more onerous. See id.
E. Superseding Indictment
Fifth, Caldwell contends Count 1 of the Superseding Indictment illegally
charged him with being a felon in possession of a firearm, in light of the Supreme
Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019).2 We review
2
Caldwell waived the defect in his indictment because his guilty plea waived all
nonjurisdictional defects in his proceeding. See United States v. Brown, 752 F.3d 1344, 1347
(11th Cir. 2014). He may obtain relief from his guilty plea only if he identifies a defect that
affected the power of the district court to enter its judgments. See id. at 1350-51. While Rehaif
clarified that a defendant’s knowledge of his status as a felon is an element of the offense of
being a felon in possession of a firearm, 139 S. Ct. at 2200, the omission of a mens rea element
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new challenges to indictments for plain error. United States v. Reed, 941 F.3d
1018, 1020 (11th Cir. 2019). A defendant must prove that an error occurred, that
was plain, and that affected his substantial rights. Id. at 1021. We may consult the
whole record when considering the effect of an error on a defendant’s substantial
rights. Id. “[I]n a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the
Government must prove both that the defendant knew he possessed a firearm and
that he knew he belonged to the relevant category of persons barred from
possessing a firearm.” Rehaif, 139 S. Ct. at 2200.
Caldwell cannot show plain error occurred because he failed to show the
error affected his substantial rights. The district court specifically asked Caldwell
if he knew what a felony was and if he had previously pled guilty to a felony.
Caldwell replied in the affirmative to both questions. Thus, Caldwell cannot
establish an error occurred that affected his substantial rights because the record
establishes that he knew of his status as a felon. See Reed, 941 F.3d at 1020-22.
from an indictment does not divest the district court of subject matter jurisdiction to adjudicate a
criminal case. See Brown, 752 F.3d at 1350-51, 1353-54. Caldwell’s indictment was defective
because it failed to allege he knew he was a felon, but Caldwell waived that nonjurisdictional
defect by pleading guilty.
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II. CONCLUSION
Accordingly, we reverse and remand to allow the district court to correct
Caldwell’s sentence pursuant to Rule 36, but affirm as to all other issues.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
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