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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-14572
Non-Argument Calendar
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D.C. Docket No. 0:15-cr-60181-BB-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RHONDA PEGGY GITTENS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 5, 2017)
Before TJOFLAT, MARCUS and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
Rhonda Peggy Gittens appeals her convictions and 75-month total sentence
for conspiring to defraud and commit an offense against the United States, in
violation of 18 U.S.C. § 371; aggravated identity theft, in violation of 18 U.S.C. §
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1028A(a)(1); and possession of device-making equipment, in violation of 18
U.S.C. § 1029(a)(4). On appeal, she argues that: (1) the district court misapplied
the law when it dismissed her motion to withdraw her guilty plea; and (2) the
district court plainly erred at sentencing when it denied a reduction in her offense
level based on acceptance of responsibility. After careful review, we affirm.
We review the denial of a motion to withdraw a guilty plea for abuse of
discretion. United States v. McCarty, 99 F.3d 383, 385 (11th Cir. 1996). District
court findings concerning acceptance of responsibility are ordinarily reviewed for
clear error. United States v. Calhoon, 97 F.3d 518, 531 (11th Cir. 1996).
However, when a defendant does not object to an issue in front of the district court,
we review only for plain error. United States v. Siegelman, 786 F.3d 1322, 1330
(11th Cir. 2015). To prevail under the plain-error standard, a defendant must show
(1) that there was an error, (2) that it was plain, and (3) that it affected his
substantial rights. United States v. Felts, 579 F.3d 1341, 1344 (11th Cir. 2009).
Even if all three requirements are met, we may exercise our discretion to correct
the error only if it seriously affected the fairness, integrity, or public reputation of
the judicial proceedings. United States v. Gonzalez, 834 F.3d 1206, 1218 (2016).
First, we are unpersuaded by Gittens’s claim that the district court
misapplied the law when it dismissed her motion to withdraw her guilty plea. The
Federal Rules of Criminal Procedure provide that a defendant may withdraw a plea
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prior to sentencing if the defendant can show a “fair and just reason” for requesting
a withdrawal. Fed. R. Crim. P. 11(d)(2)(B). In determining whether the defendant
has met her burden to show that a plea should be withdrawn, the 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 the plea. United States v. Buckles, 843 F.2d 469, 471-72 (11th Cir.
1988). There is a strong presumption that the statements made during a plea
colloquy are true. United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994).
Here, we find no merit to Gittens’s argument that the district court used an
incorrect standard in evaluating her motion to withdraw her guilty plea. For
starters, the totality-of-the-circumstances test from Buckles is a proper means for
the district court to evaluate whether the defendant met her burden under Rule 11,
and that is the test the district court applied. See Buckles, 843 F.2d at 472; Fed. R.
Crim. P. 11(d)(2)(B). Moreover, during the hearing on the motion, the district
court said that asking about the merits of the case was relevant to whether Gittens
could show a fair and just reason for the withdrawal of her guilty plea, and later
said that Gittens had the burden under Rule 11 to show a fair and just reason to
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withdraw. These comments reveal that the court properly considered the “fair and
just” standard of Rule 11. See Fed. R. Crim. P. 11(d)(2)(B).
In addition, when the district court applied the totality-of-the-circumstances
test and denied Gittens’s motion to withdraw her guilty plea, it did not abuse its
discretion. See McCarty, 99 F.3d at 385. As for the first prong of the test, the
record reveals that Gittens received close assistance of counsel from her attorney.
See Buckles, 843 F.2d at 472. Indeed, Gittens admitted, under oath at the plea
hearing and at the motion hearing, that she had reviewed the case with her attorney
during three in-person meetings and in several e-mails, had received discovery and
other filings before pleading guilty, and was satisfied with his representation. The
attorney also testified that he had discussed the case with her and had reviewed the
plea agreement with her before the hearing.
As for the second prong, the record supports the district court’s
determination that the plea was knowing and voluntary. Among other things, the
district court informed Gittens of the statutory sentencing range, the effect of the
guidelines, and the rights she waived by pleading guilty. Gittens conceded at the
plea hearing that no one forced her to plead guilty, that she was in fact guilty, and
that she agreed with the facts presented. There is a strong presumption that all her
statements at the plea colloquy were true. See Medlock, 12 F.3d at 187. And she
does not even argue on appeal that her plea was not knowing and voluntary.
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As for the third and fourth parts of the test, the government argued at the
hearing on the motion to withdraw that it would be difficult to gather witnesses and
evidence for two trials, and that judicial resources would not be conserved by
allowing Gittens to proceed to two different trials. Gittens does not address either
of these two prongs on appeal.
In short, the district court had discretion to apply the Buckles totality-of-
circumstances test to Gittens’s request to withdraw her plea. On the record before
us, it did not abuse its discretion by focusing on the first two factors over the
second two, or in determining that there was no fair and just reason to permit
withdrawal. See McCarty, 99 F.3d at 385; Fed. R. Crim. P. 11(d)(2)(B).
We also are unconvinced by Gittens’s claim that the district court plainly
erred at sentencing when it denied a reduction in her offense level based on
acceptance of responsibility. Section 3E1.1 provides that, if the defendant clearly
demonstrates acceptance of responsibility for the offense, the offense level should
be decreased by two. U.S.S.G. § 3E1.1(a). Additionally, upon motion of the
government stating that the defendant has assisted authorities by timely notifying
authorities of her intention to plead guilty, thereby permitting the government to
avoid trial and permitting the government and the court to allocate their resources
efficiently, the offense level may be decreased by one. Id. § 3E1.1(b).
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A district court’s determination that a defendant is not entitled to acceptance
of responsibility will not be set aside unless the facts in the record clearly establish
that a defendant has accepted personal responsibility. United States v. Sawyer, 180
F.3d 1319, 1323 (11th Cir. 1999). Although a guilty plea will constitute significant
evidence of acceptance of responsibility, the evidence may be outweighed by
conduct that is inconsistent with acceptance. United States v. Lewis, 115 F.3d
1531, 1537 (11th Cir. 1997); U.S.S.G. § 3E1.1 comment (n.3).
Because Gittens did not challenge the district court’s failure to apply a
reduction for acceptance of responsibility pursuant to § 3E1.1(a) and (b), we
review only for plain error. See Siegelman, 786 F.3d at 1330. Here, the record
shows that despite her initial guilty plea, Gittens later moved to withdraw the
guilty plea. Because this conduct is inconsistent with acceptance of responsibility,
we cannot say that these facts clearly establish that Gittens accepted personal
responsibility. See Sawyer, 180 F.3d at 1323; Lewis, 115 F.3d at 1537. Thus, the
district court did not plainly err by failing to apply the reduction.
Finally, as for Gittens’s argument that U.S.S.G. § 3E1.1 is unconstitutional
because it pressures defendants to plead guilty, she has not raised a valid
constitutional argument. In United States v. Henry, 883 F.2d 1010, 1010–12 (11th
Cir. 1989), we held that the denial of a § 3E1.1 reduction is not impermissible
punishment for the exercise of Fifth or Sixth Amendment rights. We explained
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that § 3E1.1 may affect how criminal defendants choose to exercise their
constitutional rights, but not every burden on the exercise of a constitutional right
and not every encouragement to waive a right is invalid. Id. at 1011. We’ve also
said that the district court’s consideration, at sentencing, of the defendants’ denial
of culpability at trial does not impermissibly punish the defendant for exercising
her constitutional right to stand trial. United States v. Jones, 934 F.2d 1199, 1200
(11th Cir.1991). Thus, because we’ve already held that § 3E1.1 is not
unconstitutional, we affirm. See Henry, 883 F.2d at 1101; Jones, 934 F.2d at 1200.
AFFIRMED.
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