USCA11 Case: 20-10898 Date Filed: 09/13/2022 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-10898
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIM LUNDI,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cr-20075-RNS-1
____________________
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2 Opinion of the Court 20-10898
Before ROSENBAUM, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Jim Lundi appeals his conviction for sex trafficking of a mi-
nor, in violation of
18 U.S.C. § 1591(a)(1) and (b)(2), challenging the
district court’s denial of his motion to withdraw his guilty plea. He
argues that he did not receive close assistance of counsel because
his counsel did not discuss the U.S. Sentencing Guidelines range
with him and his plea was not knowing and voluntary. He also
argues that the district court erroneously excluded rape shield evi-
dence under Federal Rule of Evidence 412 in violation of his Sixth
Amendment right to confront and cross-examine a witness against
him. For the reasons stated below, we affirm.
I.
We review the district court’s denial of a motion to with-
draw a guilty plea for an abuse of discretion. United States v. Buck-
les,
843 F.2d 469, 471, 474 (11th Cir. 1988). The district court may
be reversed only if its decision is arbitrary or unreasonable.
Id. at
471. A defendant seeking to withdraw his guilty plea after its ac-
ceptance by the district court, but prior to sentencing, must show
that there is a “fair and just reason” for doing so. Fed. R. Crim. P.
11(d)(2)(B).
In determining whether a defendant has met his burden to
show a “fair and just reason” to withdraw a guilty plea, a district
court may consider the totality of the circumstances surrounding
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20-10898 Opinion of the Court 3
the plea, including whether: (1) “close assistance of counsel was
available”; (2) “the plea was knowing and voluntary”; (3) “judicial
resources would be conserved”; and (4) “the government would be
prejudiced if the defendant were allowed to withdraw his plea.”
Buckles,
843 F.2d at 471–72. If the defendant does not satisfy the
first two factors, we need not give considered weight to the third
and fourth factors, i.e., whether judicial resources would be con-
served or whether the government would be prejudiced. See
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.
Statements made under oath by a defendant during a plea
colloquy receive a strong presumption of truthfulness. United
States v. Medlock,
12 F.3d 185, 187 (11th Cir. 1994). Consequently,
a defendant bears a heavy burden to show that his statements un-
der oath were false. United States v. Rogers,
848 F.2d 166, 168 (11th
Cir. 1988). Further, a mere declaration of innocence does not enti-
tle a defendant to withdraw his guilty plea. Buckles,
843 F.2d at
472. We may also consider the timing surrounding the motion to
withdraw, as a “swift change in heart” may indicate that a plea was
entered in haste and confusion. See Gonzalez-Mercado,
808 F.2d
at 801 (quoting United States v. Barker,
514 F.2d 208, 222 (D.C. Cir.
1975) (en banc)); see also Buckles,
843 F.2d at 473 (“The longer the
delay between the entry of the plea and the motion to withdraw it,
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4 Opinion of the Court 20-10898
the more substantial the reasons must be as to why the defendant
seeks withdrawal.”).
We have recognized that “[a]ll pleas of guilty are the result
of some pressures or influences on the mind of the defendant.”
Buckles, 473 F.2d at 472 (quoting Schnautz v. Beto,
416 F.2d 214,
215 (5th Cir. 1969)). Accordingly, “[a] defendant cannot complain
of coercion [by his counsel] where the attorney, employing his best
professional judgment, recommends that the defendant plead
guilty.”
Id. Further, we have considered whether the district court
assessed the competency of representation and found it to be ade-
quate in evaluating whether a defendant received close assistance
of counsel. See United States v. Freixas,
332 F.3d 1314, 1318–19
(11th Cir. 2003).
Rule 11 of the Federal Rules of Criminal Procedure “imposes
upon a district court the obligation and responsibility to conduct
an inquiry into whether the defendant makes a knowing and vol-
untary guilty plea.” United States v. Symington,
781 F.3d 1308,
1314 (11th Cir. 2015) (quoting United States v. Hernandez-Fraire,
208 F.3d 945, 949 (11th Cir. 2000)). “That inquiry ‘must address
three core concerns underlying Rule 11: (1) the guilty plea must be
free from coercion; (2) the defendant must understand the nature
of the charges; and (3) the defendant must know and understand
the consequences of his guilty plea.’”
Id. (quoting Hernandez-
Fraire,
208 F.3d at 949). We have rejected a defendant’s argument
that his plea was involuntary because he did not understand the
severity of the sentence under the plea agreement where it was
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20-10898 Opinion of the Court 5
“clear from the transcript of the plea hearing” that he had been in-
formed that “he could not rely on his counsel’s prediction of his
sentence, . . . the crime to which he pleaded guilty had a manda-
tory minimum sentence of ten years and a maximum of life impris-
onment, and . . . the sentence actually imposed” might differ from
any estimate that he had received, including from his attorney.
United States v. Pease,
240 F.3d 938, 941 (11th Cir. 2001) (rejecting
the defendant’s allegations of ineffective assistance of counsel dur-
ing the plea proceeding).
“We have long held that an appellant abandons a claim
when he either makes only passing references to it or raises it in a
perfunctory manner without supporting arguments and author-
ity.” Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 681 (11th
Cir. 2014). Notably, “a party seeking to raise a claim or issue on
appeal must plainly and prominently so indicate, i.e., in a section
of his brief that is demarcated by a boldface heading or by some
equivalent notation,” devoting “a discrete, substantial portion of
his argumentation to that issue.” United States v. Jernigan,
341
F.3d 1273, 1283 n.8 (11th Cir. 2003). A defendant’s knowing and
voluntary, unconditional guilty plea waives all non-jurisdictional
defects in the proceedings. United States v. Tomeny,
144 F.3d 749,
751 (11th Cir. 1998).
Here, Lundi has abandoned any challenge to the district
court’s denial of his motion under Rule 412 by engaging in only a
passing reference to that issue. Indeed, to the extent Lundi has pre-
sented any argument as to that issue, he has done so in a
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6 Opinion of the Court 20-10898
perfunctory manner. In any event, he cannot argue on appeal that
the district court’s ruling on the admissibility of his Rule 412 evi-
dence deprived him of constitutional rights because his guilty plea
waived the right to appeal all non-jurisdictional defects in the pro-
ceedings. Tomeny,
144 F.3d at 751.
Additionally, the district court did not abuse its discretion in
denying his motion to withdraw his plea because he received close
assistance of counsel throughout the proceedings and his counsel
employed his best professional judgment in advising Lundi to plead
guilty. Further, Lundi’s plea was both knowing and voluntary be-
cause the district court specifically and repeatedly informed him
that it would use the Sentencing Guidelines to fashion a sentence
between ten years’ imprisonment and life, it could vary or depart
from the Guidelines range, and any estimates made by counsel
were not binding on the court. Accordingly, we affirm.
AFFIRMED.
