[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 1, 2006
No. 05-12298
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20862-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DESMOND DURHAM,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 1, 2006)
Before TJOFLAT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
After pleading guilty to a count of conspiracy to possess with intent to
distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846,
Desmond Durham argues for the first time on appeal that his plea should be
vacated because the district court committed plain error during his Rule 11 plea
colloquy by failing to outline the elements of his offense or read the contents of his
indictment. Durham also appeals the district court’s denial of his motions to
withdraw his guilty plea and for appointment of new counsel. For the reasons that
follow, we affirm.
I. Background
Following his indictment for conspiracy to possess with intent to distribute
five kilograms or more of cocaine, in violation of 21 U.S.C. § 846, and attempt to
possess with intent to distribute five kilograms or more of cocaine, in violation of
21 U.S.C. § 841, Durham agreed to plead guilty to the conspiracy count in
exchange for the government’s agreement to seek dismissal of the substantive
count, to refrain from seeking enhanced penalties under 21 U.S.C. § 851, and to
recommend a sentence at the low end of the guidelines range.
At the change-of-plea hearing, the court determined that Durham had a
twelfth grade education, that he had been given a copy of the indictment, and that
he had “fully discussed” the charges in the indictment and the case in general with
his counsel. Durham confirmed that he was satisfied with counsel and the advice
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he had received. The court explained that Durham was pleading guilty to a felony
and described the potential penalties. The court also described the rights Durham
would forego by pleading guilty. Durham stated that he understood the
implications of his guilty plea and that he was entering the plea voluntarily.
The government made the following proffer at the plea hearing: A
confidential informant (“CI”) working with the government contacted a man
named “Junior” to arrange the sale of cocaine. Junior put the CI in contact with
Durham. Over a period of seven days, the CI and Durham negotiated the sale of
ten kilograms of cocaine. Eventually, the two met in a parking lot, where the CI
gave Durham a bag of cocaine in exchange for a down payment of $2,000.
Thereupon, Durham was arrested.
Durham confirmed during his plea colloquy that the proffer was correct and
entered his guilty plea. The court accepted Durham’s guilty plea, finding that there
was a factual basis for the plea and that it was made knowingly and voluntarily.
Two months after entering his guilty plea, Durham moved to withdraw the plea and
to appoint new counsel. At that time, Durham explained that he had made a
mistake in pleading guilty. Defense counsel also explained that although Durham
had expressed his desire to withdraw the plea “very shortly” after it was accepted,
counsel delayed filing the motion to allow time for Durham to reconsider his
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decision. The government objected, asserting that the Federal Rule of Criminal
Procedure 11 (“Rule 11”) hearing had been sufficient and that there was no “fair
and just reason” to allow Durham to withdraw his plea. The government further
urged the court to conduct a hearing on Durham’s motion to appoint new counsel.
The court addressed Durham’s motions at sentencing. Durham asserted that
his plea had been coerced by his attorney, and he requested new counsel. The
court noted, however, that Durham had testified during his plea colloquy that his
plea had not been coerced. Following questioning, defense counsel stated that he
had been in practice for over twenty years and that he believed he had given
Durham the correct advice. Nevertheless, defense counsel stated that because the
attorney-client relationship was no longer working and Durham had expressed his
belief that counsel had forced him to plead guilty, the court ought to appoint a new
attorney to defend him.
Durham testified that he had been coerced into pleading guilty and that he
had only had a few minutes in which to speak with counsel before the change-of-
plea hearing. Durham further testified that during the plea colloquy he answered
the court’s questions as he had been instructed to answer them by counsel.
At sentencing, the court noted Durham’s familiarity with the criminal justice
system, as evidenced by a lengthy criminal history. The court also expressed
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concern regarding the waste of judicial resources that would result from vacating
Durham’s guilty plea. Finally, the court reiterated that Durham had testified at the
plea hearing that he had not been coerced, he had been provided an opportunity to
inform the court that the plea was not given freely, and he had confirmed that the
factual proffer was correct. The court denied Durham’s motions to appoint new
counsel and to withdraw the guilty plea. Defense counsel objected to these rulings.
The court sentenced Durham to 168 months’ imprisonment.
II. Discussion
Sufficiency of Plea Colloquy
Durham first argues that the district court failed to address the core concerns
of Rule 11 at the change-of-plea hearing and that, accordingly, his plea must be
vacated. Specifically, he contends that the court failed to determine whether
Durham knew of and understood the nature of the charges against him, as the court
did not explain the charges or the elements of the offense, and it did not read or
summarize the indictment.
As Durham concedes, he did not raise a Rule 11 challenge to the guilty plea
before the district court. When a defendant fails to assert a Rule 11 violation in the
district court, he must establish plain error on direct appeal to be entitled to relief.
United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003). “Plain error
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occurs where (1) there is an error; (2) that is plain or obvious; (3) affecting the
defendant’s substantial rights in that it was prejudicial and not harmless; and (4)
that seriously affects the fairness, integrity, or public reputation of the judicial
proceedings.” United States v. Hall, 314 F.3d 565, 566 (11th Cir. 2002).
In evaluating whether a defendant has shown that his substantial rights were
affected or prejudiced, this Court has examined the three “core objectives” of Rule
11: “(1) ensuring that the guilty plea is free of coercion; (2) ensuring that the
defendant understands the nature of the charges against him; and (3) ensuring that
the defendant is aware of the direct consequences of the guilty plea.” Monroe, 353
F.3d at 1354 (internal citations omitted). “This Court has upheld plea colloquies
that fail to address an item expressly required by Rule 11 so long as the overall
plea colloquy adequately addresses these three core concerns.” Id. Furthermore,
“in the Rule 11 context, the reviewing court may consult the whole record when
considering the effect of an error on substantial rights.” Id. at 1350 (citation
omitted).
“[T]he inquiry varies from case to case depending on the relative difficulty
of comprehension of the charges and of the defendant’s sophistication and
intelligence.” United States v. DePace, 120 F.3d 233, 237 (11th Cir. 1997)
(quotation omitted). Here, the district court ensured that Durham had received a
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copy of the indictment and had discussed it with counsel. The court also read the
charge to which Durham was pleading guilty and explained the penalties, and the
court addressed the rights that Durham would forfeit by entering his plea.
Moreover, the government made a factual proffer that outlined the conduct
constituting the offense. Finally, Durham had a twelfth grade education and a
sufficient criminal history that the court could assume a certain familiarity with the
judicial system. See United States v. Bell, 776 F.2d 965, 968-69 (11th Cir. 1985).
Accordingly, Durham’s reliance on United States v. Quinones, 97 F.3d 473
(11th Cir. 1996) and United States v. Telemaque, is misplaced. The defendant in
Quinones, unlike Durham, expressed equivocation when entering his guilty plea.
Moreover, the Quinones court explicitly noted that, beyond the mere failure of the
district court to set out the elements of the charged offense, the record did not
otherwise establish that the defendant understood the nature of the charges.
Likewise, in Telemaque, unlike the instant case, the district court referred to the
nature of the charged offense only once and did not ask the defendant if defense
counsel had explained the charges.
In consideration of the above, and because conspiracy to possess with intent
to distribute drugs is not “the most complicated of offenses,” United States v.
Telemaque, 244 F.3d 1247, 1249 (11th Cir. 2001), we hold that any error the
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district court may have made in failing to discuss the elements of Durham’s
offense during the plea colloquy does not constitute plain error.
Motion to Withdraw Guilty Plea
Durham next argues that the court abused its discretion in denying his
motion to withdraw his guilty plea because Durham did not have close assistance
of counsel in light of his claim that counsel had coerced him into entering the plea.
He further asserts that his plea was not knowingly and voluntarily entered and that
his plea proceedings used few judicial resources. Finally, Durham denies that the
government will suffer any prejudice if he is allowed to withdraw his plea.
We review a district court’s denial of a motion to withdraw a guilty plea for
an abuse of discretion, reversing only if the decision is arbitrary and unreasonable.
United States v. Freixas, 332 F.3d 1314, 1318 (11th Cir. 2003).
A defendant may withdraw a guilty plea after the plea has been accepted and
prior to his sentence being imposed if he shows a “fair and just reason” for the
withdrawal. Fed. R. Crim. P. 11(d)(2)(B). In determining whether a defendant has
provided a fair and just reason for withdrawal of his plea, a 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
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prejudiced if the defendant were allowed to withdraw his plea.” Freixas, 332 F.3d
at 1318 (internal quotations marks and citations omitted). We also consider the
defendant’s admission of guilt during the plea colloquy and the timing of the
motion to withdraw. United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988).
Here, Durham testified at his change-of-plea hearing that he was guilty of
the conduct in the government’s factual proffer; he further stated that his plea was
entered knowingly and voluntarily and that he was satisfied with the advice of
counsel. The court further noted that allowing the withdrawal would waste the
judicial resources that had been expended during the plea proceedings.
Durham has produced no evidence establishing that he was coerced into
pleading guilty. On the contrary, defense counsel testified that he had not coerced
Durham into pleading guilty, and his advice regarding the guilty plea appears to
have been sound in that it enabled Durham to avoid enhanced penalties pursuant to
§ 851. Furthermore, the court provided Durham with an opportunity during the
plea colloquy to inform the court that he had been coerced. Instead, Durham stated
that his plea was not the product of coercion. The 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).
Accordingly, we hold that the district court did not abuse its discretion in denying
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Durham’s motion to withdraw his guilty plea.
Motion for Appointment of New Counsel
Finally, Durham asserts that the district court erred by denying his motion
for appointment of new counsel in light of his contention that he had been coerced
into pleading guilty. He asserts that refusing his request for new counsel created a
conflict that rendered his existing counsel ineffective under the Sixth Amendment.
The decision whether to appoint new counsel is in the district court’s
discretion. United States v. Dinitz, 538 F.2d 1214, 1219 n.7 (5th Cir. 1976).1
“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).
An indigent criminal defendant has an absolute right to be represented by
counsel, but he does not have a right to demand that a different lawyer be
appointed, except upon a showing of good cause. Id. Good cause for substitution
of counsel cannot be determined “solely according to the subjective standard of
what the defendant perceives.” Thomas v. Wainwright, 767 F.2d 738, 742
1
In Bonner v. City of Pritchard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this
court held that all decisions handed down by the old Fifth Circuit before the close of business on
September 30, 1981, are binding precedent in the Eleventh Circuit.
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(citation omitted). Furthermore, a defendant’s general loss of confidence or trust
in his counsel, standing alone, is insufficient to justify substitution. Id. Rather,
good cause requires the defendant to show a conflict of interest, a complete
breakdown in communication or irreconcilable conflict. Young, 482 F.2d at 995.
Here, Durham produced no evidence, other than his own testimony, that he
and his attorney suffered a complete breakdown in communication. Indeed, his
allegations are contradicted by his testimony at the change-of-plea hearing, at
which he stated that he was satisfied with his counsel. It appears that defense
counsel’s performance met the standards of adequate representation. In exchange
for the guilty plea, the government agreed to seek dismissal of the second count of
the indictment, it removed the enhanced penalties provision, and it recommended
that Durham receive a sentence at the low end of the guidelines. Accordingly, we
hold that Durham received adequate representation and the district court did not err
in failing to find good cause to appoint new counsel.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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