[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 8, 2007
No. 05-17024 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00011-CR-WTM-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TEYON MALIK HERRING,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(February 8, 2007)
Before BIRCH, DUBINA and MARCUS, Circuit Judges.
PER CURIAM:
Appellant Teyon Malik Herring (“Herring”) appeals his guilty-plea
conviction for possession with intent to distribute approximately twelve kilograms
of cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1), and his 121-month
sentence. On appeal, Herring argues that the district court erred in denying his
motion to withdraw his guilty plea. Herring also contends that the district court
clearly erred in enhancing his sentence for obstruction of justice under U.S.S.G.
§ 3C1.1 because the record did not show that Herring testified untruthfully as to
any material issue.
A. Denial of Herring’s Motion to Withdraw His Guilty Plea
Herring first argues that the district court erred in denying his motion to
withdraw his guilty plea. Herring had agreed to plead guilty based upon the
explanation of retained counsel, Clyde Taylor, that Herring should plead guilty as a
delaying tactic to give counsel time to investigate and prepare for a suppression
hearing and trial. Herring contends that his plea was thus unknowing and
unintelligent because he did not receive reasonably effective assistance of counsel.
He adds that judicial resources were not conserved because, if the district court
denied his motion to suppress, he would have again pleaded guilty. Although the
district court found prejudice to the government, the government had already
prepared its case and was not relying upon any civilian witness who might lose
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memory or disappear. Herring concludes that Taylor, not Herring, was responsible
for the delay because Taylor made misleading statements and promises, and
Herring timely notified the district court of his desire to withdraw his plea.
We will disturb a district court’s decision to deny a defendant’s motion to
withdraw a guilty plea only when it constitutes an abuse of discretion. United
States v. McCarty, 99 F.3d 383, 385 (11th Cir. 1996). A decision is not an abuse
of discretion unless it is arbitrary or unreasonable. United States v. Freixas, 332
F.3d 1314, 1318 (11th Cir. 2003).
After the district court has accepted a defendant’s plea, but before
sentencing, a defendant may 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). The
provisions of this rule should be “liberally construed.” McCarty, 99 F.3d at 385.1
However, “[t]here is no absolute right to withdraw a guilty plea.” United States v.
Medlock, 12 F.3d 185, 187 (11th Cir. 1994). “The good faith, credibility and
weight of a defendant’s assertions in support of a motion [to withdraw] are issues
for the trial court to decide.” United States v. Buckles, 843 F.2d 469, 472 (11th
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McCarty interpreted former Criminal Rule 32(e), which is now found at Rule 11(d) (pre-
sentence withdrawal of guilty plea) and 11(e) (post-sentence withdrawal). See 2002 Advisory
Committee Notes to Fed. R. Crim. P. 11. Further, “[p]rior to amendments to the Federal Rules of
Criminal Procedure effective December 1, 2994, Fed. R. Crim. P. 32(e) was Fed. R. Crim. P. 32(d).”
McCarty, 99 F.3d at 385 n.1.
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Cir. 1988).
In determining if the defendant has met his burden for withdrawal, “the
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.” Id. at 471-72
(citations omitted). Where a defendant has not satisfied the first two prongs of the
analysis, we need not give considerable weight to the last two. See United States v.
Gonzalez-Mercado, 808 F.2d 796, 801 (11th Cir. 1987). “There is a strong
presumption that the statements made during the [plea] colloquy are true.”
Medlock, 12 F.3d at 187. 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).
We conclude from the record that under the first prong of the analysis,
Herring had the close assistance of counsel, who met with Herring at least six to
eight times and explained the plea agreement to him. Regarding the second prong,
Taylor testified that he advised Herring that the option of withdrawing a guilty plea
was “no delaying tactic.” There is a strong presumption that Herring’s
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acknowledgment of his understanding and his statements as to his communications
with the attorney are true, and we defer to the district court’s credibility
determination in favor of Taylor.
In light of Taylor’s testimony, the plea colloquy, and the length of time
between the entry of the plea and Herring’s motion to withdraw it, we conclude
that the district court’s decision was not unreasonable. Consequently it was not an
abuse of discretion, and we affirm Herring’s conviction.
B. U.S.S.G. § 3C1.1 Enhancement
Herring next argues that the district court clearly erred in enhancing his
sentence for obstruction for justice under U.S.S.G. § 3C1.1 because the record did
not show that Herring testified untruthfully as to any material issue. Herring
claims that § 3C1.1 is not designed to punish a defendant for pleading not guilty or
for moving to withdraw a guilty plea.
The standards for reviewing the application of the Guidelines before the
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005),
decision apply after Booker as well. See United States v. Crawford, 407 F.3d
1174, 1178 (11th Cir. 2005). “A sentencing court under Booker still must consider
the Guidelines, and, such consideration necessarily requires the sentencing court to
calculate the Guidelines sentencing range in the same manner as before Booker.”
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Id. at 1178-79. We review a district court’s factual findings regarding the
imposition of an enhancement for obstruction of justice for clear error and the
district court’s application of the factual findings to the guidelines de novo. United
States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006). “Where . . . the district court
must make a particularized assessment of the credibility or demeanor of the
defendant, such as when applying the obstruction of justice enhancement for
perjury, we accord special deference to the district court’s credibility
determinations, and we review for clear error.” United States v. Banks, 347 F.3d
1266, 1269 (11th Cir. 2003).
Pursuant to U.S.S.G. § 3C1.1, a defendant may qualify for a two-level
enhancement:
[i]f (A) the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of
conviction, and (B) the obstructive conduct related to ) the defendant’s offense of
conviction and any relevant conduct; or (ii) a closely related offense. . . .
U.S.S.G. § 3C1.1. One may obstruct or impede justice by “committing, suborning,
or attempting to suborn perjury.” U.S.S.G. § 3C1.1, cmt. 4(b). Perjury has been
defined, for the purpose of applying this enhancement, as “false testimony
concerning a material matter with the willful intent to provide false testimony,
rather than as a result of confusion, mistake, or faulty memory.” United States v.
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Dunnigan, 507 U.S. 87, 94, 113 S. Ct. 1111, 1116, 122 L. Ed. 2d 445 (1993).
Though “the district court should make specific findings as to each alleged
instance of obstruction by identifying the materially false statements individually
. . . , a general finding that an enhancement is warranted suffices if it encompasses
all of the factual predicates necessary for a perjury finding.” United States v.
Singh, 291 F.3d 756, 763 (11th Cir. 2002) (quotations and citations omitted).
“Four elements must be present in order for a court to make a finding that a
defendant perjured himself: (1) the testimony must be under oath or affirmation;
(2) the testimony must be false; (3) the testimony must be material; and (4) the
testimony must be given with the willful intent to provide false testimony and not
as a result of a mistake, confusion, or faulty memory.” Id. at 763 n.4. “Material”
evidence under this Guideline is “evidence, fact, statement, or information that, if
believed, would tend to influence or affect the issue under determination.”
U.S.S.G. § 3C1.1, cmt. 6. Even if a district court fails to make specific findings, “a
remand is unnecessary if the record clearly reflects the basis for enhancement.”
See United States v. Uscinski, 369 F.3d 1243, 1246 (11th Cir. 2004).
In this case, we conclude that the district court did not clearly err. The
record supports that Herring committed at least two instances of perjury regarding:
(1) whether he understood the charges, and (2) whether he was coerced or bribed
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by counsel.
Because the district court did not clearly err in determining that Herring
provided false testimony, the next issue to consider is whether the statements were
material. Under the low threshold for materiality under the commentary to
§ 3C1.1, we conclude that Herring’s false testimony that Taylor advised him to
plead guilty as a stalling tactic was material. For the above-stated reasons, we
affirm Herring’s sentence.
AFFIRMED.
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