[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 17, 2007
No. 06-16357 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00292-CR-2-JHH-RRA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY BRUCE RODGERS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(July 17, 2007)
Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
On September 5, 2006, appellant, represented by retained counsel, pled
guilty to possession of a firearm, a Bryco Arms .380 caliber pistol, in and affecting
commerce, after having been convicted of a felony, in violation of 18 U.S.C. §
922(g)(1). In pleading guilty, appellant admitted the following: on the date of the
offense, January 7, 2006, a Birmingham police officer, while conducting a search
incident to appellant’s arrest on a felony warrant for possession of marijuana, first
degree, in violation of Alabama law, recovered a Bryco Arms .380 caliber pistol
from a holster in the waistband of his pants. The pistol was loaded with seven
rounds of ammunition. Appellant told the officer that the firearm belonged to the
owner of a convenience store who loaned him the gun. He also admitted that on
September 30, 2004, he had been convicted of unlawful possession of marijuana,
first degree, in the Circuit Court of Jefferson County, Alabama.
Three days after entering this guilty plea, appellant sent the district court a
letter indicating that he had discharged his attorney and requesting the court to
appoint substitute counsel to represent him. On September 12, 2006, the court
entered an order denying his request, but granting him leave to retain substitute
counsel. On October 10, 2006, a newly retained attorney filed an appearance in the
case. The court thereafter scheduled the sentencing hearing for December 1, 2006.
On November 30, one day before sentencing was to take place, appellant,
through his newly retained counsel, moved the district court to withdraw his plea
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of guilty, stating that he had a “viable defense,” that the gun at issue did not belong
to him, and that his underlying felony conviction should have been charged as a
misdemeanor. The district court addressed the motion the next day, prior to
convening the sentencing hearing. In arguing the motion, appellant’s attorney
admitted that the instant offense was “not [appellant’s] first rodeo” and advised the
court that appellant was facing “two pending marijuana cases in the Bessemer
Division” of the Jefferson County Circuit Court. The court denied the motion, and
at the conclusion of the sentencing hearing, sentenced appellant to a prison term of
48 months.1 He now appeals his conviction, contending that the district court
abused its discretion in denying his motion.
Federal Rule of Criminal Procedure 11 provides that “[a] defendant may
withdraw a plea of guilty . . . after the court accepts the plea but before it imposes
sentence if. . .the defendant can show a fair and just reason for requesting the
withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). When deciding whether to grant a
motion to withdraw a guilty plea, “the district court may consider the totality of the
circumstances surrounding the plea. . .includ[ing] (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
1
The sentence range prescribed by the Guidelines called for a prison sentence of
between 41 and 51 months.
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would be prejudiced if the defendant were allowed to withdraw his plea.” United
States v. Buckles, 843 F.2d 563, 471-72 (11th Cir. 1998) (internal citations
omitted). In reviewing a district court's refusal to permit the withdrawal of a
guilty plea, we defer to the court’s application of these criteria and “will reverse
only if its ultimate conclusion is ‘arbitrary or unreasonable.’” Id. (citations
omitted). If a defendant does not satisfy the first two prongs of the analysis, we do
not give considerable weight to the last two prongs. United States v.
Gonzalez-Mercado, 808 F.2d 796, 801 (11th Cir. 1987). The timing of the motion
to withdraw – here on the eve of sentencing – is relevant as it may be indicative of
the defendant’s motivation. Id.
Appellant has not shown that Buckles’s four-part test supports his position.
As the district court properly found, appellant had close assistance of counsel
before pleading guilty, and the plea was knowing and voluntary. In short, the
district court did not abuse its discretion in denying appellant’s motion to withdraw
his plea of guilty.
AFFIRMED.
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