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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12378
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANNY WAYNE HOLMES,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:21-cr-00102-WWB-LHP-13
____________________
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2 Opinion of the Court 22-12378
Before NEWSOM, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Danny Wayne Holmes appeals his conviction on one count
of conspiring to distribute and possess with intent to distribute
methamphetamine. He asserts that the district court erred for sev-
eral reasons. First, he argues that the district court abused its dis-
cretion by denying his motion to withdraw his plea agreement and
his related request for an evidentiary hearing. Second, he contends
that the government breached its plea agreement by misstating the
law in certain respects at sentencing. Third, he asserts that the dis-
trict court improperly denied him a minor-role reduction. Fourth,
he contends that his 188-month sentence is substantively unreason-
able.
The government, in turn, responds that “it is clear from the
plea agreement and the Rule 11 colloquy that Holmes knowingly
and voluntarily waived his right to appeal his sentence on most
grounds, including the grounds he now raises on appeal,” and be-
cause his appeal waiver is enforceable, his arguments concerning
the minor-role reduction and the reasonableness of his sentence are
waived. Holmes replies that the appeal waiver does not foreclose
his sentencing-based arguments, because he did not plead guilty
knowingly and voluntarily and, thus, the waiver is unenforceable.
We will address each of these points, to the extent necessary,
in turn. After careful review, we affirm.
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22-12378 Opinion of the Court 3
I
Holmes first argues that the district court abused its discre-
tion by denying his motion to withdraw his plea agreement and his
related request for an evidentiary hearing.
We review a district court’s decision to deny a motion to
withdraw a guilty plea and its refusal to hold an evidentiary hearing
for abuse of discretion. United States v. Freixas, 332 F.3d 1314, 1316
(11th Cir. 2003); United States v. Brehm, 442 F.3d 1291, 1298 (11th
Cir. 2006). “The district court may be reversed only if its decision
is arbitrary or unreasonable.” United States v. Buckles, 843 F.2d
469, 471 (11th Cir. 1988). A district court does not abuse its discre-
tion by refusing to hold an evidentiary hearing if it previously con-
ducted extensive Rule 11 inquiries prior to accepting a guilty plea.
Brehm, 442 F.3d at 1298.
After the district court has accepted a guilty plea and before
sentencing, the defendant may withdraw a guilty plea if the defend-
ant shows “a fair and just reason for requesting the withdrawal.”
Fed. R. Crim. P. 11(d)(2)(B). This standard should be liberally con-
strued, but there is no absolute right to withdraw a guilty plea be-
fore sentencing. Buckles, 843 F.2d at 471. To determine whether
a defendant has met this standard, a district court “may consider
the totality of the circumstances surrounding the plea,” including
“(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.
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4 Opinion of the Court 22-12378
at 471–72 (citations omitted). We have not given considerable
weight to the third and fourth factors when a defendant is found to
have had the close assistance of counsel and pled guilty knowingly
and voluntarily. United States v. Gonzalez-Mercado, 808 F.2d 796,
801 (11th Cir. 1987). A district court need not find prejudice to the
government before it can deny a defendant’s motion to withdraw.
Buckles, 843 F.2d at 474.
We have recognized that “[a]ll pleas of guilty are the result
of some pressures or influences on the mind of the defendant.” Id.
at 472. Thus, “[a] defendant cannot complain of coercion where
the attorney, employing his best professional judgment, recom-
mends that the defendant plead guilty.” Id. Further, we have con-
sidered whether the district court assessed the competency of rep-
resentation and found it to be adequate in evaluating whether a
defendant received close assistance of counsel. Id.
In determining whether a defendant’s guilty plea is knowing
and voluntary, the district court must conduct a plea colloquy to
ensure that the three core concerns of Rule 11 are met: “(1) the
guilty plea must be free from coercion; (2) the defendant must un-
derstand the nature of the charges; and (3) the defendant must
know and understand the consequences of his guilty plea.” Freixas,
332 F.3d at 1318.
Regarding the first core principle, Rule 11(b)(2) states that
the district court must ensure that the plea did not result from
force, threats, or promises not included in the plea agreement. Fed.
R. Crim. P. 11(b)(2). Whether the district court has complied with
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22-12378 Opinion of the Court 5
the second core principle depends on a variety of factors, including
the complexity of the offense and the defendant’s sophistication
and intelligence; for simple charges, it will usually suffice for the
district court to read the indictment and allow the defendant to ask
any questions that he may have about it. United States v. Pres-
endieu, 880 F.3d 1228, 1238–39 (11th Cir. 2018). The district court
may comply with the third core principle by informing the defend-
ant of the rights that he gives up by pleading guilty, the court’s au-
thority to impose certain punishments, and the possibility of a per-
jury prosecution for false statements made during the plea collo-
quy. United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005)
(per curiam); Fed. R. Crim. P. 11(b)(1).
There is a strong presumption that statements made during
the plea colloquy are true. United States v. Medlock, 12 F.3d 185,
187 (11th Cir. 1994). Consequently, the “defendant bears a heavy
burden to show” that the statements that he made under oath at
his plea hearing were false. United States v. Davila, 749 F.3d 982,
996 (11th Cir. 2014) (per curiam) (quotation marks omitted). The
defendant’s later assertion of actual innocence “does not entitle
him to withdraw his plea.” United States v. McCarty, 99 F.3d 383,
385–86 (11th Cir. 1996) (per curiam).
The government has a power, but not a duty, to file a sub-
stantial-assistance motion. United States v. Dorsey, 554 F.3d 958,
961 (11th Cir. 2009). The prosecutorial discretion to refuse to file
a substantial-assistance motion is subject to judicial review only if
it is based on an unconstitutional motive, such as the defendant’s
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6 Opinion of the Court 22-12378
race or religion, or is not rationally related to any legitimate gov-
ernment end. Wade v. United States, 504 U.S. 181, 185–86 (1992)
(discussing motions under U.S.S.G. § 5K1.1). Judicial review is ap-
propriate only where the defendant alleged a constitutionally im-
permissible motive and made a substantial showing that the gov-
ernment’s refusal to file a substantial-assistance motion is based on
that motive. Dorsey, 554 F.3d at 961. Consequently, when a de-
fendant merely claims that he provided substantial assistance or
makes generalized allegations of improper motive, he is not enti-
tled to a remedy or even to an evidentiary hearing. Wade, 504 U.S.
at 1886.
Here, the district court did not abuse its discretion in deny-
ing Holmes’s motion to withdraw his guilty plea. First, the record
supports the conclusion that close assistance of counsel was availa-
ble because Holmes’s counsel testified that he reviewed the plea
agreement several times with Holmes, and Holmes agreed that
he’d had sufficient time with counsel to discuss the agreement. See
Buckles, 843 F.2d at 471–72.
Second, the record reflects that Holmes’s plea was knowing
and voluntary. The magistrate judge ensured that his plea was free
from coercion when it confirmed with Holmes that he was plead-
ing voluntarily and that nobody had promised him either a partic-
ular sentence or anything else aside from what was in the plea
agreement. See Fed. R. Crim. P. 11(b)(2). Further, Holmes con-
firmed that he was factually guilty. Following the hearing’s recess,
he confirmed that he had enough time to discuss his case with his
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22-12378 Opinion of the Court 7
counsel and was satisfied with his representation. Additionally, the
government would be prejudiced and the district court would
waste valuable resources if Holmes were permitted to withdraw
his plea months later and reschedule his trial. Moreover, Holmes’s
eligibility for a substantial-assistance reduction does not affect the
validity of his plea agreement.
Finally, the district court did not otherwise abuse its discre-
tion by refusing to hold an evidentiary hearing. The magistrate
judge previously made extensive Rule 11 inquiries to ensure that
Holmes was pleading guilty both knowingly and voluntarily.
Buckles, 843 F.2d at 472.
Accordingly, we affirm as to this issue.
II
Holmes next asserts that the government breached its plea
agreement by misstating the law when it informed the district
court that, in considering the minor-role reduction, it should have
compared him to other street-level dealers. As we understand his
brief, Holmes makes two distinct breach-related arguments. First,
he asserts that the government’s alleged breach is a stand-alone rea-
son to reverse. Second, he says that because the government
breached the plea agreement, it can’t enforce his appeal waiver. 1
1 Because normal contract principles apply to a plea agreement, United States
v. Puentes-Hurtado, 794 F.3d 1278, 1284 (11th Cir. 2015), a party that has
breached the agreement generally cannot enforce it against the other party.
See id. (“We agree with our sister circuits that a party’s waiver of the right to
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8 Opinion of the Court 22-12378
We reject both of Holmes’s arguments because we conclude
that the government did not breach the plea agreement. 2 A mate-
rial promise set out in a plea agreement, which induces a defendant
to plead guilty, is binding on the government. United States v.
Thomas, 487 F.3d 1358, 1360 (11th Cir. 2007) (per curiam). The
government breaches a plea agreement when it fails to perform a
promise on which the plea was based. United States v. Hunter, 835
F.3d 1320, 1324 (11th Cir. 2016). “[A]n appeal waiver does not bar
a defendant’s claim that the government breached the plea agree-
ment.” Id.
Here, the government did not breach the plea agreement.
Even assuming that the government misstated the law, it did not
promise in the agreement to avoid incorrect legal arguments—
such as failing to correctly explain the legal basis for the district
court to determine whether Holmes was eligible for a minor-role
reduction. Therefore, the government did not breach any material
promises in the agreement. Thomas, 487 F.3d at 1360; Hunter, 835
F.3d at 1324.
Accordingly, we also affirm as to this issue.
seek appellate review is not enforceable where the opposing party breaches a
plea agreement.”) (dicta) (quoting, parenthetically, United States v. Bowe, 257
F.3d 336, 342 (4th Cir.2001)).
2Because Holmes didn’t preserve his stand-alone reversal argument, we re-
view that particular contention only plain error. See Puckett v. United States,
556 U.S. 129, 135 (2009).
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22-12378 Opinion of the Court 9
III
Holmes makes two additional assertions—(1) that the dis-
trict court improperly denied him a minor-role reduction and (2)
that his 188-month sentence is substantively unreasonable. But the
government responds that Holmes knowingly and voluntarily
waived his right to appeal these issues.
We will review the validity of a sentence appeal waiver de
novo. United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir.
2008). A sentence appeal waiver will be enforced if it was made
knowingly and voluntarily. United States v. Bushert, 997 F.2d
1343, 1351 (11th Cir. 1993).
To establish that a waiver was made knowingly and volun-
tarily, the government must show either that (1) the district court
specifically questioned the defendant about the waiver during the
plea colloquy or (2) the record makes clear that the defendant oth-
erwise understood the full significance of the waiver. Id. The gov-
ernment cannot show that an appeal waiver was knowing and vol-
untary from an examination of the text alone. Id. at 1352. A waiver
is enforceable if the defendant claimed to understand it during the
plea colloquy, confirmed that he had read the plea agreement and
knew it was binding, and entered into the plea agreement freely
and voluntarily. United States v. Weaver, 275 F.3d 1320, 1323–24,
1333 (11th Cir. 2001) (holding that a waiver is valid where it was
“referenced” at the Rule 11 hearing and where the district court
established that the defendant had read and understood “every
page and every word” of the plea agreement).
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10 Opinion of the Court 22-12378
“An appeal waiver includes the waiver of the right to appeal
difficult or debatable legal issues or even blatant error.” United
States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005). Fur-
ther, even “a vigorous dispute about an issue during the sentencing
proceedings does not preserve that issue for appeal when the terms
of the appeal waiver do not except it from the waiver.” United
States v. Bascomb, 451 F.3d 1292, 1296 (11th Cir. 2006).
Nevertheless, an effective waiver is not an absolute bar to
appellate review. Johnson, 541 F.3d at 1068. Specifically, a “valid
and enforceable appeal waiver . . . only precludes challenges that
fall within its scope.” United States v. Hardman, 778 F.3d 896, 899
(11th Cir. 2014). Moreover, we have indicated that certain issues
may be exempt from the scope of a valid appeal waiver, such as a
defendant’s “right to appellate review of a sentence imposed in ex-
cess of the maximum penalty provided by statute or based on a
constitutionally impermissible factor such as race,” or where “the
sentence imposed is not in accordance with the negotiated agree-
ment.” Bushert, 997 F.2d at 1348, 1350 n.18 (quotation marks omit-
ted). We have also suggested that extreme circumstances—“for in-
stance, if the district court had sentenced [the defendant] to a public
flogging”—may implicate due process and require that the defend-
ant be allowed to appeal notwithstanding a valid appeal waiver.
United States v. Howle, 166 F.3d 1166, 1169 n.5 (11th Cir. 1999). In
addition, we have held that “an appeal waiver . . . which is part of
a guilty plea is unenforceable if the plea itself is involuntary or
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22-12378 Opinion of the Court 11
unintelligent.” United States v. Puentes-Hurtado, 794 F.3d 1278,
1284 (11th Cir. 2015).
Here, we conclude that Holmes’s appeal waiver is valid be-
cause he entered his guilty plea knowingly and voluntarily, and the
magistrate judge explained the terms of the waiver to him before
recommending that the court accept his plea. Thus, the waiver is
enforceable. Bushert, 997 F.2d at 1350 n.18, 1351. Further, none
of the exceptions to the waiver applies here. Holmes’s 188-month
sentence did not exceed the guideline range, it did not exceed the
statutory maximum of life imprisonment, he does not argue that
his sentence violated the Eighth Amendment, and the government
did not file a cross-appeal.
Because we conclude that Holmes’s appeal waiver is valid,
we decline to consider the merits of his challenges to the district
court’s denial of a minor-role reduction and to the reasonableness
of his sentence.
AFFIRMED.