[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 5, 2007
No. 06-12338 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00569-CR-03-TWT-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HARRY BARNETT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 5, 2007)
Before TJOFLAT, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Harry Barnett appeals the district court’s refusal to allow him to withdraw
his plea of guilty to one count of conspiracy to commit bank fraud, file false credit
applications and receive a commission or gifts for procuring loans, a violation of
18 U.S.C. §§ 1344, 1014 and 215(a), all in violation of 18 U.S.C. § 371, and one
count of filing false credit applications in violation of 18 U.S.C. §§ 1014 and 2.
Barnett also appeals the sentence of 15 months in prison which the court imposed
following his plea, on the grounds that he should have been granted a four-level
downward adjustment for his minimal role in the offense and the court should have
considered a non-guideline sentence.
We find that the district court did not abuse its discretion when it refused to
allow Barnett to revoke the guilty plea he made knowingly and voluntarily.
Further, the plea agreement in which he agreed to waive the right to appeal his
sentence prevents us from considering any change to his sentence. We AFFIRM.
I. BACKGROUND
Prior to entering a plea, Barnett signed a negotiated plea agreement with the
government in which he admitted that he pled guilty because he was in fact guilty
of the crimes with which he was charged. In the agreement, Barnett and the
government agreed that the intended loss of the relevant conduct attributable to
Barnett was between $200,000 and $400,000. In return for Barnett’s plea, the
government promised Barnett that it would dismiss all other charges against him
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and, at sentencing, would recommend that Barnett receive a two-level downward
departure for acceptance of responsibility and a two-level downward adjustment
for his minor role in the offense. The government also promised that it would
recommend that Barnett be sentenced at the low end of the applicable guideline
range. The plea agreement also included a provision in which Barnett waived his
right to directly appeal or collaterally attack his sentence to the maximum extent
permitted by federal law, unless the court departed upwardly from the guidelines or
the government appealed the sentence.
At the plea hearing, Barnett told the district judge that he was willing to
relinquish his right to trial. The government then presented the plea agreement and
recited its terms for the record, including the provision in which Barnett agreed to
waive his right to appeal his sentence. The district judge then questioned Barnett,
under oath. Barnett said that he had not been threatened to plead guilty, that no
one had made any promises to him that were not evidenced in the plea agreement,
and that no one had made any promises as to the terms of his actual sentence. The
district judge explicitly asked Barnett about the appeal waiver provision and he
responded that his waiver was given freely and voluntarily, and that he understood
that he was waiving his right to appeal his sentence, unless the court issued an
upward departure from the guidelines or the government appealed. Barnett
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answered that he understood that he would be bound by the plea agreement and
would have no right to withdraw it, even if the sentence was more severe than he
expected or if the court declined to adopt the sentencing recommendations in the
plea agreement. Barnett also agreed with the facts proferred by the government,
and affirmed that he was pleading guilty because he was, in fact, guilty. The
district judge commented that he had observed Barnett during the plea hearing and
found that Barnett had entered his plea “free of any coercive influence of any kind”
and “voluntarily [] with full knowledge of the charges against him and the
consequences of his plea of guilty.” R4 at 24.
The probation officer adopted the terms of the plea agreement. He
calculated Barnett’s sentence, beginning with a base offense level of 6, and adding
12 levels because the amount of loss exceeded $200,000, but was less than
$400,000. After reducing the offense level by a three-point downward adjustment
for acceptance of responsibility and a two-point reduction for Barnett’s minor role
in the enterprise, the probation officer calculated an adjusted offense level of 13.
The probation officer determined that Barnett had a criminal history score of II,
resulting in a guideline range of imprisonment of 15 to 21 months.
On 2 April 2006, two days before his sentencing hearing was scheduled,
Barnett filed a motion to withdraw his guilty plea, maintaining that he never
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knowingly performed any act in furtherance of the conspiracy. Barnett claimed
that he decided to plead guilty because he could not confirm contradictory
statements made by a co-defendant and was, therefore, afraid that he was
unprepared for trial. Barnett also argued that he felt pressured by the government
and his family because the government would not consider a plea agreement for
his son, who had already made up his mind to plead guilty, unless Barnett also pled
guilty. Barnett claimed that if he was allowed to withdraw his plea and proceed to
trial, he would produce testimony that would indicate that he had no knowledge of
the conspiracy.
The district court considered Barnett’s motion before beginning the
sentencing hearing. In response to the motion, the government argued that
Barnett’s motive for seeking to withdraw his plea was his desire to avoid prison.
It maintained that the motion was filed over five months after the plea and only
two days before sentencing, and that his attorney had offered to withdraw the
motion if the government would agree to a sentence that did not involve any
incarceration.
The district judge denied Barnett’s motion to withdraw his plea. He noted
that it had reviewed the plea transcript, and that Barnett’s plea was accepted based
on his statements under oath at the hearing and not on any statements by one of his
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co-defendants. He commented that Barnett’s “change [of] mind and [desire] to go
to trial [was] not sufficient legally . . . to allow him to withdraw his guilty plea.”
R3 at 27. Referencing United States v. Buckles, 843 F.2d 469 (11th Cir. 1988), the
district judge then reviewed the factors and the totality of the circumstances to
determine whether or not Barnett had presented a “fair and just reason” to
withdraw his plea. Id. at 24, 27-29. The district judge found that Barnett received
“vigorous assistance of counsel”; that Barnett knowingly and voluntarily entered a
plea of guilty because he thought [it] in his best interest; that judicial resources
would not be conserved by allowing Barnett to withdraw his guilty plea just before
his sentencing and would require the expenditure of additional resources; that the
government would be prejudiced by allowing Barnett to withdraw his guilty plea;
and that Barnett was not unfamiliar with the guilty plea process as he was both a
former attorney who was trained in the law and had previously pled guilty to prior
convictions. Id. at 27-29.
Barnett objected to the probation officer’s characterization of his role in the
offense, and maintained that his conduct relative to the other participants should
have merited a four-level minimal participation reduction. The district judge
overruled Barnett’s request, and assigned a two-level downward adjustment. The
district court reasoned that Barnett was being held responsible only for the lines of
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credit with which he was directly involved and not for the larger conspiracy, and
that he was the least culpable of the individuals involved with those lines of credit
but “not so minimal as to entitle him to a four-level downward enhancement.” Id.
at 74-75. The district court also overruled all of Barnett’s other objections to the
presentence investigation report, and calculated a sentence within the
recommended guideline range. Barnett requested consideration of a sentence
below the guidelines range, based on his cooperation with the government in
another investigation and his age. The district court, however, denied a downward
departure and imposed a sentence at the low end of the guidelines range. Barnett
was then sentenced to serve 15 months in prison, ordered to pay $288,297.86 in
restitution jointly and severally, and placed on a term of three years of supervised
release.
II. DISCUSSION
A. Withdrawal of the guilty plea
Barnett argues on appeal that the court erred in denying his motion to
withdraw his guilty plea because he did not knowingly engage in criminal activity
and his plea was involuntary. He claims that from the time he was charged, he has
maintained that he did not knowingly or intentionally file fraudulent documents in
furtherance of the criminal scheme. Barnett posits that he pled guilty to a crime he
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did not commit because his co-defendant son wanted to avoid trial and the
government made the specific offer contingent on acceptance by both Barnett and
his son. If he was permitted to withdraw his plea, Barnett would seek to introduce
a statement by a co-defendant, unverifiable at the time Barnett entered his plea, that
would question whether Barnett had knowledge of the plan.
We review the district court’s denial of a motion to withdraw a guilty plea
for an abuse of discretion, reversing only if the decision was arbitrary or
unreasonable. United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir.) (per
curiam), cert. denied, ___ U.S. ___, 127 S. Ct. 457 (2006) (citations omitted).
After the district court has accepted a guilty plea but before the sentence is
imposed, a defendant may withdraw the plea if “the defendant can show a fair and
just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). To
determine whether the defendant has provided a “‘fair and just reason’” to
withdraw the plea, the district court “may consider the totality of the circumstances
surrounding the plea.” Buckles, 843 F.2d at 471-72 (citation omitted). Factors to
be considered include “(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.” Id. at 472 (citations omitted).
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Although a district court has the discretion to evaluate “[t]he good faith, credibility
and weight of a defendant’s assertions,” id. at 471-72, in support of a motion to
withdraw a plea, “[t]here is a strong presumption that the statements made during
the [plea] colloquy are true.” United States v. Medlock, 12 F.3d 185, 187 (11th
Cir. 1994) .
A review of the record indicates that the district court was not acting
arbitrarily or unreasonably when it refused to allow Barnett to withdraw his guilty
plea. The court provided a lengthy examination of the Buckles factors and found
that the totality of the circumstances did not suggest that Barnett had a “fair and
just reason” for seeking a withdraw. Because the record supports the district
court’s findings on the Buckles factors, the district court did not err in denying
Barnett’s request to withdraw his guilty plea.
B. Appeal waiver
Barnett next challenges his sentence, alleging that the court erred by denying
his request for a four-level downward adjustment for a minimal role in the offense
and by not considering a non-guideline sentence.
We will enforce an appeal waiver “if the government demonstrates either:
(1) the district court specifically questioned the defendant about the waiver during
the plea colloquy, or (2) the record clearly shows that the defendant otherwise
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understood the full significance of the waiver.” United States v. Grinard-Henry,
399 F.3d 1294, 1296 (11th Cir.) (per curiam), cert. denied, 544 U.S. 1041, 125 S.
Ct. 2279 (2005).
During the plea proceedings, the district court specifically questioned
Barnett about the provision in the plea agreement in which he agreed to give up his
right to appeal his sentence unless the court awarded an upward departure from the
guidelines or the government appealed the sentence. Because Barnett was
questioned specifically about the waiver, and demonstrated that he knowingly and
voluntarily agreed to it, we will enforce the waiver. The language of the provision
indicates two exceptions to the waiver which would allow Barnett to challenge his
sentence: (1) the district court’s issuance of an upward departure or (2) the
government’s appeal challenging his sentence. Neither exception applies here, and
we will not consider whether Barnett should have been awarded a four-level
minimal role reduction or a non-guideline sentence.
III. CONCLUSION
The district court did not abuse its discretion when it ruled that Barnett had
failed to present a “fair and just reason” for seeking to withdraw his guilty plea.
Because the district court also made a determination that Barnett knowingly and
voluntarily waived his right to appeal his sentence, we will not review the merits of
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his challenges to his sentence. The district court’s denial of Barnett’s motion to
withdraw his guilty plea and Barnett’s sentence are
AFFIRMED.
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