[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 3, 2008
THOMAS K. KAHN
No. 07-13734
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-14013-CR-KAM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CEDRIC ANTHONY REESE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 3, 2008)
Before CARNES, BARKETT and HULL, Circuit Judges.
PER CURIAM:
After pleading guilty, Cedric Anthony Reese appeals his convictions and
144-month sentence for: (1) possession with intent to distribute five grams or more
of crack cocaine, in violation of 21 U.S.C. § 841(a)(1); and (2) possession of a
firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Reese argues that the district court abused its discretion by not allowing him to
withdraw his guilty plea. After review, we affirm Reese’s convictions and dismiss
his appeal of his sentence based on the appeal waiver in his plea agreement.
I. Background
In April 2006, Reese was arrested after the execution of a search warrant at
his residence. The search revealed, inter alia, ammunition, eleven grams of crack
cocaine, an assortment of items associated with the distribution of cocaine, and, on
the back porch, a locked toolbox that contained eight firearms. Reese claimed
ownership of the toolbox and the firearms.
After indictment, Reese signed a written plea agreement, pleading guilty to
Count 1—possession with intent to distribute five grams or more of crack cocaine,
in violation of 21 U.S.C. § 841(a)—and Count 2—possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The
government agreed to dismiss Count 3—possession of an unregistered firearm (a
sawed-off shotgun), in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871.
The plea agreement also contained a sentence appeal waiver provision that
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precluded Reese from appealing his sentence unless: (1) it exceeded the maximum
permitted by statute; (2) it was the result of an upward departure from the advisory
guidelines sentencing range that the district court established at sentencing; or (3)
the government appealed the sentence.
At Reese’s change-of-plea hearing on June 15, 2006, Reese testified that his
lawyer, Lori Barrist, had “done everything she could” to defend him in the case;
that there was nothing else she should have done to defend him; and that he was
satisfied he had received competent representation from Barrist. Reese further
stated that he understood the plea agreement; that no one had threatened or forced
him to plead guilty; that he had fully discussed the plea agreement with his
attorney; and that he had freely and voluntarily signed the agreement.
At the same hearing, Reese also acknowledged that he understood that as
part of the plea agreement, he was giving up his right to appeal his sentence unless
the sentence was above the advisory guidelines range, exceeded the maximum
sentence permitted by law, or was appealed by the government. Reese stated that
he was freely and voluntarily giving up his right to appeal his sentence and that he
had not been forced or threatened into doing so. The district court scheduled
Reese’s sentencing hearing for September 15, 2006.
The Presentence Investigation Report (“PSI”) set Reese’s base offense level
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at 22, pursuant to U.S.S.G. § 2K2.1(a)(3). Reese’s offense level was then
increased (1) by four levels, pursuant to U.S.S.G. § 2K2.1(b)(1)(B), because his
offense involved more than seven firearms, and (2) by four more levels, pursuant
to U.S.S.G. § 2K2.1(b)(5),1 because he used or possessed a firearm with
knowledge that it would be used in connection with another felony offense. The
PSI recommended a three-level reduction for acceptance of responsibility. The
resulting offense level was 27, and with a criminal history category of IV, Reese’s
advisory guidelines range was 100 to 125 months’ imprisonment.
On September 11, 2006, prior to the scheduled September 15 sentencing
hearing, Barrist moved to withdraw as Reese’s counsel, stating that irreconcilable
differences had arisen between her and Reese regarding the management of his
case. Barrist noted that on September 8, 2006, Reese told her that he wished to
withdraw his guilty plea and claimed that the only reason he had pled guilty was
because Barrist “insisted” that he do so. The district court granted Barrist’s
motion, appointed new counsel, and postponed Reese’s sentencing hearing until
March 2007.
On March 1, 2007, Reese moved to withdraw his guilty plea. At an April
1
U.S.S.G. § 2K2.1(b)(5) is the applicable guideline provision because the parties agree
that the November 2005 version of the Sentencing Guidelines applies to Reese. The guideline in
question now appears at U.S.S.G. § 2K2.1(b)(6); we refer to it as § 2K2.1(b)(5) for simplicity.
4
2007 evidentiary hearing, the district court heard testimony from both Reese and
his prior attorney, Barrist. Reese testified that prior to pleading guilty and just
after his initial appearance, he provided the name of an exculpatory witness to
Barrist, but she did nothing with the information. Reese also testified that after he
had signed the plea agreement, but before his June 2006 change-of-plea hearing, he
told Barrist that he did not want to plead guilty and she refused to help him.
According to Reese, he only signed the plea agreement because Barrist kept telling
him that he needed to plead guilty, and it remained his desire to proceed to trial.
In contrast, Barrist testified that Reese told her that he wanted to plead
guilty, and so Barrist contacted the prosecutor, who then sent a proffer letter.
Barrist took the proffer letter to Reese, and Reese signed it on May 9, 2006. Reese
called her later that day to tell her that he no longer wished to cooperate with the
government, but Reese did not say that he did not want to plead guilty. Barrist
explained that after Reese told her that he did not want to cooperate with the
government, she wrote him a letter explaining the pros and cons of pleading guilty.
In the letter, Barrist advised Reese that pleading guilty and cooperating was
Reese’s best option, so as to possibly have his sentence lowered. Barrist then met
with Reese on May 22, 2006, at which time Reese told her that he was going to
plead guilty, and she went over the sentencing guidelines with him. Reese signed
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the plea agreement on May 26, 2006. Barrist met with Reese again on June 8,
2006 (a week before the change-of-plea hearing) to review the plea and the
procedures for the change-of-plea hearing. According to Barrist, she went over
each line of the plea agreement with Reese; Reese acknowledged that he
understood the terms of the agreement; and Reese never stated that he did not want
to sign the agreement or that he felt pressured to sign.
The district court denied Reese’s motion to withdraw his guilty plea,
concluding that he fell “woefully short” of meeting his burden. Among other
things, the district court: (1) accepted as true Barrist’s testimony that it was not
until shortly before Reese’s scheduled sentencing that he claimed that she forced
him to plead guilty and that he wanted to withdraw his guilty plea; and (2) found
that Reese “simply changed his mind about his prior uncoerced decision to plead
guilty and concocted a false story to attempt to [undo] what he later determined to
be a poor decision.”
At sentencing, the district court granted the government’s motion for: (1) a
two-level increase in Reese’s offense level, pursuant to U.S.S.G. § 3C1.1, for
obstruction of justice based on Reese’s false testimony at the April 2007
evidentiary hearing; and (2) a denial of the previously-recommended three-level
reduction for acceptance of responsibility. The district court also overruled
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Reese’s objection to the four-level enhancement based on U.S.S.G. § 2K2.1(b)(5)
(the more-than-seven-firearms enhancement). This left Reese with an adjusted
offense level of 32 and an advisory guidelines range of 168 to 210 months’
imprisonment. The district court ultimately imposed a sentence of 144 months’
imprisonment, noting that the advisory guidelines range was so high because of
Reese’s own “foolish conduct.” Reese timely appealed.
II. Withdrawal of guilty plea
After the district court has accepted a plea and before sentencing, a
defendant may withdraw a guilty plea if “the defendant can show a fair and just
reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). In
determining whether a defendant has established a “fair and just reason,” courts are
to consider the totality of the circumstances, including whether: (1) the defendant
had close assistance of counsel; (2) the defendant’s plea was knowing and
voluntary; (3) judicial resources would be conserved; and (4) the government
would be prejudiced by the withdrawal. See United States v. Freixas, 332 F.3d
1314, 1318 (11th Cir. 2003); United States v. Buckles, 843 F.2d 469, 471-72 (11th
Cir. 1988). “The good faith, credibility and weight of a defendant’s assertions in
support of a motion [to withdraw a guilty plea] are issues for the trial court to
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decide.” Buckles, 843 F.2d at 472.2
Here, the district court did not abuse its discretion in denying Reese’s
motion to withdraw his guilty plea. The district court properly considered the four
Buckles and Freixas factors listed above. First, close assistance of counsel was
available to Reese. Barrist testified that she had been a federal assistant public
defender for almost twenty-three years. Barrist negotiated a favorable plea
agreement for Reese, including the government’s agreement to dismiss Count 3 of
the indictment. Moreover, Barrist met with Reese a number of times and advised
him of his options and the pros and cons of pleading guilty. The fact that Barrist’s
extensive defense experience strongly suggested that Reese’s best course of action
was to plead guilty in an effort to reduce his sentence certainly does not mean that
Barrist failed to render “close assistance” to Reese. 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.”).
Second, the transcript from the change-of-plea hearing (as well as the signed
plea agreement and the testimony at the evidentiary hearing) makes it clear that
Reese knowingly and voluntarily entered his plea. At the change-of-plea hearing,
2
We review the denial of a request to withdraw a guilty plea for abuse of discretion, and
reverse only if the district court’s conclusion was “arbitrary or unreasonable.” Freixas, 332 F.3d
at 1316, 1318.
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Reese, a high school graduate, told the district court, under oath, that he had read
and understood the plea agreement; discussed it fully with Barrist; and understood
all of its terms and provisions. Reese further told the district court that he had
signed the plea agreement “freely and voluntarily”; that no one had forced or
threatened him in any way to sign the agreement; and that he decided to change his
plea from not guilty to guilty “freely and voluntarily.” Reese also told the court
that Barrist had provided competent representation and that she had done
everything she could to defend him. Indeed, Barrist testified at the evidentiary
hearing that she went through each line of the plea agreement with Reese prior to
the change-of-plea hearing.
Third, contrary to Reese’s argument on appeal, the district court did consider
whether judicial resources would be conserved. The district court specifically
determined that “enough judicial resources [had] already been expended,” noting
that Reese received a complete Rule 11 proceeding and a full evidentiary hearing
on the motion to withdraw. The district court further observed that Reese’s own
“false accusations” about Barrist resulted in the unjustified need for appointment of
a second lawyer, which drained limited court funds. Notably, in Buckles, we
found no abuse of discretion as to the third factor when the district court in that
case found that “enough judicial resources [had] been expended” and noted that the
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defendant Buckles had “received both a complete Rule 11 proceeding and a full
evidentiary hearing on the [plea withdrawal] matter.” Buckles, 843 F.2d at 474.
While Reese may be correct that this is not a complex case and would not take a
great deal of time and expense to try, the district court did not abuse its discretion
in its evaluation of this factor.
Finally, as to the fourth factor, the district court observed that it was
essentially undisputed that the government would not suffer prejudice if Reese’s
motion was granted, but the district court also correctly observed that prejudice to
the government is only one of the factors to be considered in evaluating a motion
to withdraw a guilty plea. Given that the district court properly considered the
totality of the circumstances, we cannot say that the district court abused its
discretion in denying Reese’s motion to withdraw his guilty plea.
III. Sentence appeal waiver
Sentence appeal waivers are valid if they are made knowingly and
voluntarily. United States v. Bushert, 997 F.2d 1343, 1350 (11th Cir. 1993). For
an appeal waiver to be enforced, “[t]he government must show that either (1) the
district court specifically questioned the defendant concerning the sentence appeal
waiver during the Rule 11 colloquy, or (2) it is manifestly clear from the record
that the defendant otherwise understood the full significance of the waiver.” Id. at
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1351.3
Here, as required by Bushert, the district court specifically questioned Reese
about his sentence appeal waiver at the change-of-plea hearing. Reese told the
district court that he understood that he would ordinarily have the right to appeal
his sentence, but he was giving up that right unless his sentence exceeded the
advisory guidelines range, exceeded that permitted by law, or the government
appealed the sentence. Reese also stated that he gave up his right to appeal his
sentence “freely and voluntarily,” and that no one had forced or threatened him in
any way to give up that right. Additionally, Reese does not argue that any of the
exceptions to his sentence appeal waiver apply.4 Thus, under Bushert, Reese’s
sentence appeal waiver was made knowingly and voluntarily, and we dismiss his
appeal of his sentence.
IV. Conclusion
For the foregoing reasons, we affirm Reese’s convictions and dismiss his
3
We review the validity of a sentence appeal waiver de novo. See United States v.
Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir. 1997).
4
As to his sentence, Reese contends that the district court erred in: (1) increasing his
offense level four levels, pursuant to U.S.S.G. § 2K2.1(b)(5), because the guns were not
possessed in connection with the drug offense; (2) increasing his offense level two levels,
pursuant to U.S.S.G. § 3C1.1, for obstruction of justice based on his false testimony at the
evidentiary hearing; and (3) refusing to award him a three-level reduction for acceptance of
responsibility. Reese makes no claim that his sentence exceeds the advisory guidelines range,
that his sentence exceeds the duration permitted by law, or that the government appealed his
sentence, and none of the exceptions to the sentence appeal waiver are implicated in this case.
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appeal of his sentence.
AFFIRMED IN PART; DISMISSED IN PART.
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