United States v. Lenin v. Perez

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 27, 2007
No. 06-13070 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 03-00298-CR-T-23-TBM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LENIN V. PEREZ,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(February 27, 2007)

Before BLACK, HULL and MARCUS, Circuit Judges.

PER CURIAM:

After pleading guilty, Lenin V. Perez appeals his conviction and 21-month
sentence for receiving kickbacks, in violation of 42 U.S.C. § 1320a-7b(b)(1)(A),

and 18 U.S.C. § 2. After review, we affirm Perez’s conviction and dismiss his

appeal of his sentence.

I. BACKGROUND

A. Plea Agreement and Guilty Plea

Perez, a former postal worker, was the president of the local postal workers

union in Tampa, Florida. After an investigation by the United States Office of

Postal Service Inspection, Perez and a codefendant were indicted on thirty-three

counts of soliciting and receiving, and conspiring to solicit and receive, kickbacks.

According to the government, Perez and his codefendant received kickbacks for

referring postal workers to a doctor, a chiropractor and a massage therapist for

medical care for which claims were made under the federal worker’s compensation

program.

Perez pled not guilty. On the day of trial, however, Perez entered into a

written plea agreement and pled guilty to one count of the indictment. Perez’s plea

agreement contained a sentence appeal waiver providing that Perez waived his

right to appeal his sentence or challenge it collaterally on any ground, except “(a)

the ground that the sentence exceeds the defendant’s applicable guidelines range as

determined by the Court pursuant to the United States Sentencing Guidelines; (b)

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the ground that the sentence exceeds the statutory maximum penalty; or (c) the

ground that the sentence violates the Eighth Amendment to the Constitution.”

At the plea hearing, Perez indicated, among other things, that he had not

been forced to plead guilty and that no one had threatened him or promised him

anything other than what was set forth in the plea agreement in order to get him to

plead guilty. The magistrate judge also explained to Perez that he had a right to

appeal his sentence and that he was waiving that right by agreeing to the terms of

the plea agreement. Perez indicated that he understood.

Following the plea hearing, the magistrate judge recommended that Perez’s

plea agreement and guilty plea be accepted and that Perez be adjudged guilty.

Perez did not file objections to the magistrate judge’s report and recommendation,

and the district court accepted Perez’s guilty plea.

B. First Sentencing Hearing

At sentencing, Perez objected to various Sentencing Guidelines

enhancements recommended in Perez’s presentence investigation report (“PSI”).

The district court overruled Perez’s objections and adopted the PSI’s guidelines

calculations, which produced an advisory guidelines range of 21 to 27 months’

imprisonment. The district court also denied Perez’s request for a downward

departure based on his ill health.

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 During his allocution, Perez appeared to protest his innocence. The district

court asked Perez if he wished to plead innocent, to which Perez responded that he

“wanted to go to trial the whole time, because [he was] innocent of the charges”

and that he had been told by lawyers that “they were going to arrest [his] daughter

to squeeze [him] . . . .” After consulting with his counsel, Perez requested

permission to file a motion to withdraw his guilty plea. The district court granted

Perez’s request and continued the sentencing hearing.

C. Motion to Withdraw Guilty Plea

Perez filed a motion to withdraw his guilty plea, arguing that his plea had

been coerced and that he was not in fact guilty. At the same time, Perez’s counsel,

Patrick Doherty, filed a motion to withdraw. The district court granted Doherty’s

motion and appointed substitute counsel.

At an evidentiary hearing, Perez presented four witnesses, including his

wife, his daughter, his daughter’s attorney and himself. According to these

witnesses, prior to Perez’s guilty plea, the government began investigating Perez’s

daughter and was seeking her fingerprints and handwriting samples. Initially,

Perez did not believe that the government could prove a case against his daughter

because she had done nothing wrong. On the morning of trial, Perez arrived at the

courthouse intending to proceed to trial. Perez soon learned that the government

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was offering plea agreements and that his codefendant had decided to accept.

Perez’s attorney, Doherty, presented Perez with a copy of the written plea

agreement from the government. Perez did not recognize the names of the

individuals that he was alleged in the plea agreement to have referred for

kickbacks. Perez objected and told his attorney he would not agree to a felony

charge. According to Perez, as well as his wife and daughter who were present

during plea negotiations, Doherty repeatedly told Perez that if he did not plead

guilty, Perez would “kick his way into prison” and the government would arrest

and prosecute his daughter. After Perez’s daughter begged him to sign the plea

agreement, he did so.

In rebuttal, the government called Doherty, Perez’s counsel at the plea

hearing. Doherty testified that while preparing for trial he learned from the

government’s attorney that there was another mail fraud investigation involving

Perez and that Perez’s daughter was a potential codefendant in that investigation.

Doherty discussed with Perez the potential for additional charges against Perez and

his daughter. According to Doherty, Perez was not concerned.

Doherty also testified that several months before trial he and Perez had

discussed the possibility of entering into a plea to a misdemeanor charge and that

about a month before trial Perez wrote Doherty a letter expressing interest in

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avoiding trial. However, Perez still voiced no concern about possible charges

against his daughter. Doherty also reviewed the Sentencing Guidelines with Perez

and concluded that Perez was possibly facing between ten and sixteen months in

prison.

According to Doherty, Perez instructed Doherty to resolve Perez’s case

without going to trial. Therefore, on the day of trial, Doherty approached the

government about the possibility of Perez pleading guilty to the misdemeanor of

misprision of a felony, the offense to which Perez’s codefendant had agreed to

plead guilty. The government rejected Doherty’s offer, but proposed that Perez

plead guilty to one felony count of receiving a kickback. During the plea

negotiations, Perez never told Doherty he wanted to plead guilty for the benefit of

his daughter.1 Furthermore, Doherty denied that he had told Perez that his

daughter would be arrested and prosecuted if Perez did not sign the plea

agreement. Rather, while Perez debated whether to go to trial, Doherty told Perez

that if Perez entered a guilty plea, Doherty believed the government would not

proceed further with the mail fraud case. Doherty also told Perez that if Perez did

not plead guilty, he would be “breaking into prison.” Finally, Doherty testified

1
Indeed, Doherty testified that Perez considered pleading guilty for the sake of his wife and
his codefendant’s wife, who was ill with cancer. Doherty responded by telling Perez that he could
not plead guilty for anyone else’s sake and had to plead guilty for himself or go to trial.

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that he did not know that Perez wanted to withdraw his guilty plea until Perez

announced his desire to do so during the sentencing hearing.

The magistrate judge recommended that the district court deny Perez’s

motion to withdraw his guilty plea. In the report, the magistrate judge noted that

Doherty’s comments to Perez during plea negotiations about Perez “breaking into

prison” and the possibility that the mail fraud case would not be pursued if Perez

pled guilty “were the product of Doherty’s candid assessment of a difficult client, a

favorable plea offer and the potential harm that could arise from Perez’s refusal to

accept it.” The magistrate judge observed that the comments “were not without a

basis in the circumstances nor did they misrepresent any known facts.” The

magistrate judge concluded that Doherty’s comments were not intended to

improperly coerce a plea and that to render effective assistance Doherty was

obligated to address the mail fraud investigation with his client.2 The magistrate

judge further concluded that Doherty’s comments were only one factor considered

by Perez in deciding to plead guilty and that Perez was not compelled by them to

do something he was unwilling to do. Finally, the magistrate judge noted that the

timing of Perez’s change of heart – waiting to ask to withdraw his guilty plea until

2
The magistrate judge also noted that there was no evidence that the government made any
reference to Perez’s daughter during the plea negotiations and that this was not a case in which the
government had induced a plea through threats to prosecute a third party. Perez does not contend
otherwise on appeal.

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the sentencing court had ruled on Perez’s objections and made the guidelines

calculations – suggested an ill-conceived scheme. The district court adopted the

magistrate judge’s report over Perez’s objection and denied Perez’s motion to

withdraw his guilty plea.

D. Second Sentencing Hearing

At Perez’s second sentencing hearing, the district court determined, and the

parties agreed, that the prior sentencing hearing determinations applied and that the

district court would not revisit matters that already had been decided. After Perez

argued in mitigation and allocuted, the district court sentenced Perez to a 21-month

sentence, at the low end of the advisory guidelines range. Perez filed this appeal.

II. DISCUSSION

A. Motion to Withdraw Guilty Plea

On appeal, Perez argues that the district court abused its discretion by

denying his motion to withdraw his guilty plea.3

When a defendant decides to plead guilty, Federal Rule of Criminal

Procedure 11 requires that the district court address the defendant personally in

3
We “‘review the denial of a request to withdraw a guilty plea for abuse of discretion.’”
United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. ) (quoting United States v. Freixas, 332 F.3d
1314, 1316 (11th Cir. 2003)), cert. denied, __ U.S. __ 127 S. Ct. 457 (2006). A decision regarding
a plea withdrawal request is not an abuse of discretion unless it is arbitrary or unreasonable. Id.

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open court and determine whether the plea is knowing and voluntary and that a

factual basis exists for the plea. Fed. R. Crim. P. 11(b). Perez does not argue that

the district court did not fully comply with Rule 11’s requirements during the plea

colloquy. Nor does Perez argue that he received ineffective assistance of counsel

during the plea negotiations or the Rule 11 hearing.

Once a guilty plea has been accepted by the district court, the defendant has

no absolute right to withdraw it. United States v. Buckles, 843 F.2d 469, 471 (11th

Cir. 1988). Rather, after the district court has accepted a defendant’s plea, but

before sentencing, Rule 11 gives the district court the discretion to permit a

defendant to withdraw his guilty plea if he “can show a fair and just reason for

requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). In determining whether

the defendant has met his burden for withdrawal, “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 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.” Buckles, 843 F.2d at 471-72 (citation omitted).

Perez’s argument on appeal focuses on the second factor, contending that his

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plea was not voluntary.4 Specifically, Perez argues that Doherty coerced him to

plead guilty to avoid potential prosecution against his daughter.

The district court did not abuse its discretion in concluding that Perez has

not shown that his plea was involuntary. First, Perez stated during his plea

colloquy that his plea was not induced by any threats and was freely made. Perez

also stated that he was satisfied with his attorney’s representation. “There 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). Consequently, a

defendant “bears a heavy burden to show his statements [under oath] were false.”

United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988). Perez has failed to

carry this heavy burden.

Second, we agree with the district court that Doherty’s comments to Perez

merely expressed Doherty’s professional assessment of the possible benefits of

pleading guilty and were not a threat to compel Perez to plead guilty against his

will. See Buckles, 843 F.2d at 472 (“A defendant cannot complain of coercion

where his attorney, employing his best professional judgment, recommends that

the defendant plead guilty.”).5 Third, the record indicates that, in the months

4
On appeal, Perez does not argue that the other Buckles factors militate in his favor.
5
To the extent Perez, his wife and his daughter testified inconsistently with Doherty (e.g.,
that Doherty repeatedly stated that Perez’s daughter would be arrested and prosecuted if Perez did
not sign the plea agreement), the district court was free to credit Doherty’s version of events, and

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before trial, although Perez knew about the mail fraud investigation and the

potential charges against his daughter, Perez discussed with Doherty the possibility

of striking a plea bargain and was not concerned about his daughter during those

discussions. Indeed, on the morning of trial, Doherty was under instructions from

Perez to negotiate a deal, and still Perez said nothing to Doherty about concern for

his daughter. Finally, Perez sought to withdraw his guilty plea only after the

district court had overruled Perez’s objections to the recommended guidelines

calculations and it was clear Perez was facing 21 to 27 months’ imprisonment

rather than the 10 to 16 months Perez and Doherty had anticipated.

Given that Perez’s guilty plea was voluntary, the district court did not abuse

its discretion in concluding that, under the totality of the circumstances, Perez had

failed to show a fair and just reason for withdrawing his plea.

B. Sentence

Perez also argues that his sentence is unreasonable, citing United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). However, in his plea agreement,

Perez waived his right to appeal his sentence on any ground except for the grounds

that the sentence exceeded the applicable guidelines range or the statutory

we will not disturb that finding. See Buckles, 843 F.2d at 472 (“The good faith, credibility and
weight of a defendant’s assertions in support of a motion [to withdraw his guilty plea] are issues for
the trial court to decide.”).

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maximum sentence or that the sentence violated the Eighth Amendment. Perez’s

Booker claim does not fall within any of these exceptions.6 Thus, if enforceable,

Perez’s appeal waiver precludes review of Perez’s Booker claim.

An appeal waiver “will be enforced 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

understood the full significance of the waiver.” United States v. Grinard-Henry,

399 F.3d 1294, 1296 (11th Cir.) (quotation marks omitted), cert. denied, 544 U.S.

1041, 125 S. Ct. 2279 (2005).

The record indicates that, during the plea colloquy, the government read the

appeal waiver provision to Perez, the district court specifically questioned Perez

about the appeal waiver, and Perez and his attorney confirmed that Perez

understood its significance. Because Perez knowingly and voluntarily entered into

his appeal waiver, the appeal waiver is enforceable. Therefore, we do not address

the merits of Perez’s Booker claim.

Accordingly, we affirm Perez’s conviction and dismiss his appeal of his

sentence.

AFFIRMED IN PART, DISMISSED IN PART.

6
Perez’s 21-month sentence did not exceed the advisory guideline range of 21 to 27 months
or the statutory maximum of five years for his offense.

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