[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10587 ELEVENTH CIRCUIT
JUNE 27, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 1:10-cr-00190-ODE-AJB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DIYIANA CLAY DAMAYO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(June 27, 2012)
Before EDMONDSON, CARNES and FAY, Circuit Judges.
PER CURIAM:
Diyiana Clay Damayo appeals her convictions after pleading guilty to mail
fraud, 18 U.S.C. § 1341, and aggravated identity theft, 18 U.S.C. § 1028A(a) and
(b)(2). Damayo was sentenced to a total term of 132 months’ imprisonment. No
reversible error has been shown; we affirm.
On appeal, Damayo challenges the district court’s denial of her pro se
motion to withdraw her guilty plea.* We review a district court’s denial of a
motion to withdraw a guilty plea for abuse of discretion. United States v.
Izquierdo, 448 F.3d 1269, 1276 (11th Cir. 2006). We will not reverse the district
court’s decision unless its denial was “arbitrary and unreasonable.” Id.
A defendant has no absolute right to withdraw a guilty plea. United States
v. Buckles, 843 F.2d 469, 471 (11th Cir. 1988). But a defendant may do so if she
is able to show a “fair and just reason” for the request. Id. In determining whether
a defendant has met this burden, the district court considers the totality of the
circumstances surrounding the plea, including these 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
*
Damayo also argues that the district court erred in holding her accountable for the total fraud
loss, but we have already granted the government’s motion to dismiss this claim based on
Damayo’s sentence appeal waiver. And, because Damayo fails to elaborate on her ineffective
assistance of counsel claim -- mentioned only in the “Summary of the Argument” section of her
brief -- she has waived that issue. See United States v. Gupta, 463 F.3d 1182, 1195 (11th Cir.
2006) (explaining that a party waives an issue mentioned in her opening brief when she fails to
offer substantive arguments to support it).
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plea.” Id. at 472 (citation omitted). But once the court determines that a
defendant received close assistance of counsel and entered her plea knowingly and
voluntarily, little weight is given to the remaining two Buckles factors. See
United States v. Gonzalez-Mercado, 808 F.2d 796, 801 (11th Cir. 1987).
We see no abuse of discretion in the district court’s denial of Damayo’s
motion to withdraw her guilty plea. Under the first part of Buckles, we conclude
that Damayo received close assistance of counsel. During a hearing on Damayo’s
pro se motions for new counsel and to withdraw her guilty plea, Damayo’s lawyer
testified that he had spent between 120 and 150 hours working on Damayo’s case.
During this time, Damayo’s lawyer conducted extensive investigation and
discovery and discussed with Damayo several times the evidence against her, the
government’s position, and the potential sentencing consequences.
The record also shows that Damayo consulted with her lawyer repeatedly
during her plea hearing before answering the district court’s questions and
pleading guilty. Damayo confirmed that she had discussed the guidelines with her
lawyer, had been given adequate time to consult with her lawyer about her case,
and was satisfied with her lawyer’s representation. She has not overcome the
strong presumption that statements made during the plea colloquy are true. See
United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994).
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The record also demonstrates that Damayo’s guilty plea was knowing and
voluntary. In determining whether a plea was knowing and voluntary, the district
court must address three core concerns underlying Fed.R.Crim.P. 11: (1) whether
the plea was free from coercion; (2) whether defendant understood the nature of
the charges; and (3) whether defendant understood the consequences of her guilty
plea. United States v. Hernandez-Fraire, 208 F.3d 945, 949 (11th Cir. 2000).
During her plea hearing, Damayo confirmed these things: (1) that she was
pleading guilty “freely and voluntarily”; (2) that the government’s factual proffer
was accurate; (3) that she understood the rights she was giving up by pleading
guilty; and (4) that she understood the range of sentences she could face. That
Damayo had difficulty understanding -- despite her lawyer’s and the court’s
explicit and repeated instructions -- that she could be held accountable for her
codefendant’s fraudulent acts does not change our analysis. See United States v.
Hauring, 790 F.2d 1570, 1571-72 (11th Cir. 1986) (concluding that the district
court did not abuse its discretion in refusing to allow a defendant to withdraw his
guilty plea where defendant’s subjective belief that he could later withdraw his
plea was unjustified).
The timing of Damayo’s motion to withdraw her plea is also significant.
That Damayo filed her motion only after receiving her Presentence Investigation
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Report -- a full two months after entering her guilty plea -- indicates that she was
likely motivated by her dissatisfaction with her potential sentence instead of by a
change of heart about pleading guilty. See Gonzalez-Mercado, 808 F.2d at 801
(explaining that “the time between entry of a plea and motion to withdraw the plea
may be indicative of defendant’s motivation” and that defendants should not be
permitted “to use the guilty plea as a means of testing the weight of the potential
sentence.”).
The remaining Buckles factors do not support Damayo’s argument; and
because Damayo enjoyed close assistance of counsel and entered a knowing and
voluntary plea, we need not give these factors considerable weight. See Gonzalez-
Mercado, 808 F.2d at 801. Given the totality of the circumstances, the district
court did not abuse its discretion in denying Damayo’s motion to withdraw her
plea.
AFFIRMED.
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