United States v. Sean Patrick Farrelly ( 2023 )

USCA11 Case: 21-11413 Document: 41-1 Date Filed: 01/17/2023 Page: 1 of 18
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11413
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SEAN PATRICK FARRELLY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:19-cr-00044-MMH-PDB-1
____________________
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2 Opinion of the Court 21-11413
Before BRANCH, LUCK, and BRASHER, Circuit Judges.
PER CURIAM:
Sean Patrick Farrelly pleaded guilty to “recruit[ing], en-
tic[ing], transport[ing], obtain[ing], maintain[ing], patroniz[ing],
and solicit[ing]” a minor “to engage in a commercial sex act,” in
violation of 18 U.S.C. section 1591(a)(1). He moved to withdraw
his plea, and the district court denied the motion. Farrelly was then
sentenced to thirty years in prison, followed by ten years of super-
vised release. He appeals the district court’s denial of his motion
and the substantive reasonableness of his sentence. We affirm.
FACTUAL BACKGROUND
Farrelly lived with his girlfriend, Vicky Cole, and her teen-
aged boy and girl for several years. From March 2018 to February
2019, when he was arrested, Farrelly had sex with the girl. She was
sixteen years old at the time.
Farrelly texted the victim from a cell phone to set up their
sex acts. Before sex, he “primed [her] up” by having her “drink
alcohol or smoke marijuana.” After sex, he paid her in cash and
cigarettes.
Eventually, the victim cooperated with law enforcement
and made controlled calls to Farrelly to catch him. Law enforce-
ment also uncovered incriminating evidence after executing a
search warrant on Farrelly’s residence and truck.
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PROCEDURAL HISTORY
The section 1591(a)(1) charge was the only count against
Farrelly. The magistrate judge appointed Assistant Federal De-
fender Maurice Grant to represent him. Farrelly pleaded not guilty
at his arraignment and went before the magistrate judge a couple
of months later to change his plea to guilty.
During the change of plea hearing, the magistrate judge ad-
vised Farrelly of the rights he would be giving up by pleading
guilty, the elements of the charge against him, the penalties and
consequences of pleading guilty, and the sentencing process. Far-
relly was also allowed to ask questions of Grant. At the end of the
hearing, the magistrate judge noticed “from [Farrelly’s] facial ex-
pression” that he “might be a little hesitant” about changing his
plea. The magistrate judge told Farrelly that he “need[ed] to feel
really comfortable with” the decision, and he responded that he
“d[id]n’t feel comfortable.” The magistrate judge noted that “if
[Farrelly] plead[ed] guilty, [he] really [would] have limited oppor-
tunities to withdraw the plea.” Then, the magistrate judge decided
“not [to] go further” so Farrelly could have time to discuss his de-
cision with Grant and “really think about” what he was doing.
About a week later, Farrelly asked for—and received—an-
other change of plea hearing. During the hearing, he said that no
one had forced him to plead guilty, but that law enforcement had
“indirectly . . . threatened” his family, including his adult daughter
and Ms. Cole. He assured the magistrate judge that the threats
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4 Opinion of the Court 21-11413
hadn’t caused him to plead guilty. The magistrate judge found that
Farrelly entered his plea knowingly, voluntarily, and intelligently
and that he received “the advice and counsel of a competent law-
yer,” i.e., Grant. Farrelly agreed with those findings. The magis-
trate judge mentioned that Farrelly had fourteen days to object to
the forthcoming recommendation that the district court accept his
guilty plea. The objection period, though typically waived, was
not waived in this case. During the hearing, Farrelly asked Grant
if he could “withdraw [his] plea later on,” and Grant responded that
he could not. Grant emphasized that Farrelly should plead guilty
only if he was in fact guilty.
Farrelly didn’t object to the magistrate judge’s recommen-
dation, and the district court accepted his guilty plea and found him
guilty of the section 1591(a)(1) charge. About a month later, pro-
bation submitted the initial presentence investigation report,
which showed a guideline range of thirty years to life in prison.
Less than two weeks after the report, Grant moved to withdraw as
Farrelly’s counsel because their attorney-client relationship “ha[d]
devolved to the point” of being irreparably “severed.” The magis-
trate judge granted the motion and appointed Ronald Maxwell as
Grant’s replacement. Because Mr. Maxwell required “significant
time to review the case” to address multiple issues that Farrelly had
raised, the district court continued the sentencing hearing for about
four months. About two months into the continuance, Farrelly
moved to withdraw his guilty plea because he hadn’t entered it
knowingly, voluntarily, and intelligently.
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In the motion, Farrelly contended that he had pleaded guilty
because government agents threatened and coerced both him and
those closest to him: Ms. Cole, his children, and his ex-wife. “[H]e
felt he had no viable choice,” he said, “but to proceed with a [guilty]
plea and thus protect himself and others from further harassment
and possible unfounded criminal charges.” Farrelly claimed that
he wanted to withdraw his plea for a while but didn’t know how
and that Grant didn’t help him or tell him that he could object to
the magistrate judge’s recommendation or withdraw his plea “at
any time”—“for any reason or no reason”—before the district
court accepted it. Farrelly “denie[d] the allegation of sex with a
minor” and “the concept of money for sex.” He complained that
“[h]e was never advised” that his guideline range could be thirty
years to life after sentencing enhancements. And he asserted that
the withdrawal of his plea wouldn’t prejudice the government or
waste judicial resources and that he moved to withdraw at the “ear-
liest reasonable time” given the change in his legal representation.
Under “the totality of the circumstances,” said Farrelly, he “demon-
strated . . . a fair and just reason to withdraw his guilty plea.”
The district court held three hearings on the motion: two in
January 2020 and one in December 2020. During the hearings,
Grant testified that he told Farrelly during the second change of
plea hearing that Farrelly couldn’t withdraw his guilty plea later
on. Grant also testified that he didn’t advise Farrelly that Farrelly
could withdraw his plea for any reason during the fourteen days
that he had to object to the magistrate judge’s recommendation.
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And Farrelly testified that he would have withdrawn his plea if he
had been properly advised.
After the hearings, the district court denied the motion be-
cause Farrelly hadn’t shown a fair and just reason to withdraw his
plea. The district court explained that Farrelly entered his plea
knowingly, voluntarily, and intelligently, as reflected in his answers
under oath during the two change of plea hearings. The district
court didn’t credit “his belated and wholly inadequate and illogical
explanations for providing those answers.” The district court
found that Farrelly didn’t want to withdraw his plea until after the
district court accepted it and that he wouldn’t have withdrawn his
plea earlier if Grant had provided him better counsel. The presen-
tence investigation report, the district court determined, had
“prompted . . . Farrelly’s desire to withdraw his guilty plea.” The
district court considered the factors in United States v. Buckles, 843
F.2d 469, 472 (11th Cir. 1988), and concluded that they weighed
against allowing Farrelly to withdraw his plea. The district court
explained that Farrelly received close assistance of counsel from
Grant, pleaded guilty “with full knowledge of the potential penalty
he faced,” and failed to “present a compelling explanation” for the
five months between the entry of his plea and the filing of his mo-
tion to withdraw the plea. And the second change of plea hearing,
the district court emphasized, had “readily satisfied all of the core
concerns of Rule 11.” The district court also noted that granting
the motion “would prejudice the victim” by requiring her to “relive
. . . traumatic experiences.”
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At the sentencing hearing, the district court stated the guide-
line range of thirty years to life in prison. Keeping the calculations
as they were, the district court gave Farrelly credit for acceptance
of responsibility and didn’t enhance his sentence for obstruction of
justice, despite the need for multiple hearings on his motion and
his false testimony during the hearings. Before the parties dis-
cussed sentencing, the victim’s father testified on her behalf. He
described Farrelly as a “great manipulator” who “groomed” her to
perform sex acts, and he shared the “tumult” that Farrelly had
caused her, including “depression, outbursts of anger, . . . thoughts
of suicide,” and a panic attack in the courtroom before the hearing.
The government sought “a guideline sentence of imprison-
ment followed by a lifetime of supervised release” to “reflect the
seriousness of the offense, promote respect for the law, provide just
punishment for the offense, afford adequate deterrence to criminal
conduct, and protect the public from further crimes” by Farrelly.
The government pointed out Farrelly’s “long history of domestic
violence” that “appear[ed] to increase with age,” and argued that
time in prison hadn’t deterred him from “harm[ing] women.” In-
stead, the government said, he “moved on to a younger, more vul-
nerable person, someone . . . he should have been caring for, pro-
tecting[,] and parenting.” The government noted that the victim
“had no escape from him” because he “lived in her home,” ap-
proached her in her bathroom and bedroom, and posed “as a pa-
rental figure” to her. And Farrelly, the government contended,
presented a high risk of reoffending based on his criminal history.
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8 Opinion of the Court 21-11413
The government also asserted that Farrelly contacted his children
and Ms. Cole to “coerce . . . or tamper with [the victim] in some
way so she would change the case against him.”
Farrelly asked the district court to vary downward from the
guideline range to between twelve and fifteen years in prison based
on the average sentences in similar cases according to the 2019 Fed-
eral Human Trafficking Report. He argued that his criminal his-
tory really boiled down to the domestic violence. And the domes-
tic violence, he said, involved only two victims—his ex-wife (the
“one primary victim”) and Ms. Cole—and stopped after he served
time in prison. He emphasized that he had mostly been “well em-
ployed” and “a good provider for his family.” In fact, his son testi-
fied: “[M]y dad’s always been the best father anybody could ask
for. And he’s not a danger to the community or a predator.” Far-
relly asked the district court to consider that he had been doing
“hard time” in the county jail for over two years related to the sec-
tion 1591(a)(1) charge. He introduced into evidence a report by an
expert stating that his risk of committing another sexual offense
was low. And he noted that his offense didn’t involve “physical
abuse or threats,” and that he hadn’t committed “this type of con-
duct” before. He also argued that he “w[ould] suffer punishment
beyond” his imprisonment because he would “be required to reg-
ister as a sex offender” and, thus, his crime “w[ould] follow him his
whole life.”
The district court denied Farrelly’s request for a downward
variance and “impose[d] the low end of the guidelines”: thirty
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years in prison. The district court began by listing the sentencing
factors in 18 U.S.C. sections 3553(a)(1), (2), and (4). The district
court regarded the first factor, the nature and circumstances of Far-
relly’s offense, as “extraordinarily serious.” The district court ex-
plained that Farrelly was one of the victim’s caregivers, in a sup-
posedly committed relationship with her mother, and thus should
have told her to abstain from marijuana and alcohol. Instead, the
district court noted, he plied her with those very substances to get
her to have sex with him “over and over and over again.” By pay-
ing the victim for sex, Farrelly inflicted unfathomable damage on
her, the district court said. And the district court discerned “very
little mitigation in . . . Farrelly’s personal history and circum-
stances” because he had “a good childhood” and engaged in “inci-
dent after incident of domestic violence” as an adult, revealing “a
complete lack of respect for the law in almost all of the . . . inci-
dents.” The district court questioned the value of Farrelly’s expert
report because he lied to the expert when she assessed his risk of
recidivism. He told her that he hadn’t used drugs, paid for sex, or
had sex with a minor.
The district court didn’t vary downward for three reasons:
“the guidelines [we]re correctly calculated,” Farrelly received the
benefit of acceptance of responsibility (and no obstruction of jus-
tice) even though he didn’t really accept responsibility or show any
remorse, and his “hard time” in jail was mainly “self-inflicted” due
to his motions to withdraw his plea and to continue the proceed-
ings. The district court determined that Farrelly needed “very
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10 Opinion of the Court 21-11413
serious consequences to reflect the seriousness of [his] offense, to
promote respect for the law, to accomplish any sort of deterrence,
to accomplish just punishment for destroying the life of a child, and
to protect the public.” After observing that it had heard from the
parties and the victim, read letters submitted by family and friends,
and reviewed the expert report and the presentence investigation
report, the district court sentenced Farrelly under 18 U.S.C. sec-
tions 3551 and 3553 to thirty years in prison, followed by ten years
of supervised release. “[H]aving considered all of the various sen-
tencing factors and the specific facts regarding the actual offense
conduct,” the district court expressly concluded that this sentence
was “sufficient but not greater than necessary to satisfy the statu-
tory purposes of sentencing.”
STANDARD OF REVIEW
We review for abuse of discretion a district court’s denial of
a defendant’s motion to withdraw his guilty plea. United States v.
Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006). We will find an abuse
of discretion only if “the denial [wa]s arbitrary or unreasonable.”
Id. (quotation omitted). We also review for abuse of discretion the
substantive reasonableness of the sentence imposed by the district
court. United States v. Irey, 612 F.3d 1160, 1188–89 (11th Cir. 2010)
(en banc). We will find an abuse of discretion only if the district
court (1) didn’t consider “relevant factors that were due significant
weight,” (2) gave “significant weight to an improper or irrelevant
factor,” or (3) made “a clear error of judgment in considering the
proper factors.” Id. at 1189.
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21-11413 Opinion of the Court 11
DISCUSSION
Farrelly appeals the district court’s denial of his motion to
withdraw his guilty plea and the substantive reasonableness of his
sentence. We address these issues in turn.
The Denial of the Motion to Withdraw the Guilty Plea
Farrelly argues that he showed a fair and just reason to with-
draw his guilty plea. He contends that Grant, his first attorney,
provided ineffective assistance of counsel in telling him that he
couldn’t withdraw his plea instead of advising him about his abso-
lute right to withdraw his plea for any reason before the district
court accepted it. Farrelly would have moved to withdraw his plea
sooner, he claims, if Grant hadn’t misinformed him about his rights
but had instead explained to him the importance of either the pro-
cedural rule governing the withdrawal of guilty pleas or the four-
teen-day period for objecting to the magistrate judge’s recommen-
dation that the district court accept his plea. 1 Farrelly also says that
he only entered his plea because law enforcement threatened his
family. If he could withdraw his plea, he argues, his trial wouldn’t
expend any more judicial resources than a typical trial would, and
the government wouldn’t suffer any prejudice because state and
1
For the first time in his reply brief, Farrelly argues that Grant also failed to
advise him about sentencing enhancements and several other issues. But, be-
cause these arguments come too late, we don’t consider them on appeal. See
Lovett v. Ray, 327 F.3d 1181, 1183 (11th Cir. 2003) (“Because he raises th[e]
argument for the first time in his reply brief, it is not properly before us.”).
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federal law enforcement have been involved in the case for a while
and all (or almost all) witnesses are local. Farrelly also asserts that
he filed his motion “in a reasonably timely manner” given his
change in counsel.
“A defendant may withdraw a plea of guilty . . . after the
court accepts the plea, but before it imposes sentence if . . . the de-
fendant can show a fair and just reason for requesting the with-
drawal.” Fed. R. Crim. P. 11(d)(2)(B). To determine whether the
defendant showed a fair and just reason, we “consider the totality
of the circumstances surrounding the plea.” Buckles, 843 F.2d at
471–72. Generally, we focus on four 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 plea.” Id. at 472.
The first two factors are the most important. See United States v.
Gonzalez-Mercado, 808 F.2d 796, 801 (11th Cir. 1987) (giving little
weight to the third and fourth factors). We commit to the district
court’s discretion any determinations about the “good faith, credi-
bility[,] and weight of a defendant’s assertions in support of” his
motion to withdraw his guilty plea. Buckles, 843 F.2d at 472.
After weighing the testimony, the district court found that
Farrelly didn’t want to withdraw his guilty plea until after the
presentence investigation report came out—over a month after the
district court accepted Farrelly’s guilty plea. This finding is sup-
ported by the record and within the district court’s discretion. Id.USCA11 Case: 21-11413 Document: 41-1 Date Filed: 01/17/2023 Page: 13 of 18
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Because Farrelly didn’t want to withdraw his plea until well after
the district court accepted it, Grant’s failure to inform him that he
could withdraw it before its acceptance or to explain the signifi-
cance of objecting to the magistrate judge’s recommendation
didn’t have any effect.
In all other respects, Grant provided Farrelly close assistance
of counsel. During both change of plea hearings, Farrelly testified
that Grant told him about the section 1591(a)(1) charge and an-
swered all his questions. During the first hearing, he also testified
that he talked to Grant about the sentencing guidelines. And dur-
ing the second hearing, he testified that he discussed his case fully
with Grant, had enough time to talk to Grant, and was satisfied
with—and didn’t have any complaints about—Grant’s representa-
tion. Also during the second hearing, when the magistrate judge
asked whether Farrelly agreed that he had “the advice and counsel
of a competent lawyer” in Grant, Farrelly said yes. Further, during
the second hearing on the motion to withdraw the plea, Grant tes-
tified that Farrelly could—and did—call him from behind bars to
discuss his case. Given Grant’s availability and the “strong pre-
sumption” that a defendant’s statements during change of plea
hearings are true, United States v. Medlock, 12 F.3d 185, 187 (11th
Cir. 1994), the first Buckles factor weighs against finding a fair and
just reason to withdraw the plea.
Although Farrelly now claims that his “primary reason for
entering a guilty plea centered around the threats” against his fam-
ily, he testified to the contrary during his second change of plea
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14 Opinion of the Court 21-11413
hearing. He testified—twice—that no one threatened or coerced
him to plead guilty. And he said that he was “confident” the threats
against his family weren’t causing him to plead guilty. The district
court credited this testimony over the assertions Farrelly made in
support of his motion to withdraw his plea, and it was within its
discretion to do so. See Buckles, 843 F.2d at 472. Farrelly doesn’t
give any other reason for doubting the knowing, voluntary, and
intelligent nature of his plea, and none is apparent from the record.
Indeed, from the extensive change of plea hearings, we see that
Farrelly’s guilty plea was free from coercion and that he under-
stood the nature of the charge against him and the consequences
of his plea, including that his sexual offense carried registration re-
quirements. See United States v. Lejarde-Rada, 319 F.3d 1288, 1289
(11th Cir. 2003) (“When a district court accepts a guilty plea, it must
ensure that the three core concerns of Rule 11 of the Federal Rules
of Criminal Procedure have been met: (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.” (quotation omitted)). Thus,
the second Buckles factor weighs against finding a fair and just rea-
son to withdraw the plea.
Because the first two factors are the most important and
they both weigh against a fair and just reason to withdraw the plea,
we do not discern an abuse of discretion in the district court’s
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denial of Farrelly’s motion to withdraw his guilty plea. Thus, we
affirm.2
The Substantive Reasonableness of the Sentence
Farrelly contends that his sentence of thirty years in prison
is substantively unreasonable and that twelve to fifteen years
would suffice to punish him. In imposing its sentence, the district
court “fixate[d],” he says, on the seriousness of his offense even
though, “in terms of sex trafficking cases, this case involved typical
but somewhat mild mannered . . . conduct.” Farrelly explains that
he didn’t bind or kidnap the victim, take her from her home, im-
prison her, inflict physical violence on her, use a firearm, or employ
“any particularly aggravating circumstances.” As to his criminal
history, Farrelly notes that since his release from prison for his most
recent domestic violence incident, he “had a clean record,” and he
had no history of “inappropriate sexual conduct with anyone,
much less a minor.” Farrelly describes himself as a good provider
and “a family man” and points to his expert’s report as evidence of
his low risk of sexually reoffending. In his view, the district court
abused its discretion when it gave undue weight to the seriousness
of his offense; disregarded his age, low risk of recidivism, and lack
of criminal history for sexual offenses like prostitution; and created
a disparity between his sentence and the average sentences for sex
2
We also note that “enough judicial resources have been expended in this
case.” Buckles, 843 F.2d at 474.
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trafficking involving minors according to the 2019 Federal Human
Trafficking Report. 3
The district court considered not only all section 3553(a) sen-
tencing factors, including the guideline range for Farrelly’s sen-
tence, but also the “specific facts” of his case. United States v.
Rosales-Bruno, 789 F.3d 1249, 1260 (11th Cir. 2015). Then, it im-
posed a sentence at the bottom of the guideline range. We gener-
ally expect a sentence in the guideline range to be substantively
reasonable. United States v. Stanley, 739 F.3d 633, 656 (11th Cir.
2014). That the sentence fell well below the statutory maximum
of life imprisonment, see 18 U.S.C. §§ 1591(a)(1), (b)(2), also sup-
ports its substantive reasonableness, see United States v. Croteau,
819 F.3d 1293, 1310 (11th Cir. 2016) (“A sentence imposed well be-
low the statutory maximum penalty is another indicator of reason-
ableness.”).
Farrelly complains that the district court paid too much at-
tention to the seriousness of his offense. But “[t]he decision about
how much weight to assign a particular sentencing factor is ‘com-
mitted to the sound discretion of the district court.’” Rosales-
Bruno, 789 F.3d at 1254 (quoting United States v. Williams, 526
F.3d 1312, 1322 (11th Cir. 2008)). And because “[c]hild sex crimes
are among the most egregious and despicable of societal and
3
Farrelly argues, for the first time in his reply brief, that the district court’s
sentence duplicated enhancements that he received. This argument also
comes too late for us to consider. See Lovett, 327 F.3d at 1183.
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21-11413 Opinion of the Court 17
criminal offenses, . . . courts have upheld lengthy sentences in these
cases as substantively reasonable.” United States v. Sarras, 575 F.3d
1191, 1220 (11th Cir. 2009). In Farrelly’s view, his offense wasn’t
that serious because he didn’t force his victim from her home or
become physically violent with her. But the district court observed
that she wasn’t safe from him in her home and that he inflicted
plenty of damage on her, even though it wasn’t through physical
violence. We discern no abuse of discretion in treating Farrelly’s
offense as particularly serious.
Farrelly also faults the district court for overlooking his low
risk of recidivism and his criminal history. But the district court
didn’t overlook these factors. It explicitly rejected his expert report
as evidence of his risk of recidivism because he lied to the expert,
and it agreed with the government that his criminal history was a
better indicator of his risk of recidivism. Farrelly focuses on how
likely he is to commit another sexual offense like this one. But the
district court didn’t have to approach the issue so narrowly. The
statutory purposes of sentencing more broadly include “pro-
mot[ing] respect for the law” and “afford[ing] adequate deterrence
to criminal conduct.” 18 U.S.C. § 3553(a)(2)(A)–(B). The district
court determined that Farrelly’s sentence was “sufficient but not
greater than necessary to satisfy the statutory purposes of sentenc-
ing.” And the district court didn’t abuse its discretion in making
this determination. Cf. Irey, 612 F.3d at 1222 (finding a sentence
set at the statutory minimum to be substantively unreasonable
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18 Opinion of the Court 21-11413
because the district court “discounted the value of general deter-
rence for sexual crimes against children”).
Finally, Farrelly says that the district court created an unwar-
ranted sentencing disparity between him and similar defendants.
He points to average sentences as support. But “the statistics [he]
cites are bare numbers without context and, therefore, do not per-
suade us that his sentence[ is] unreasonable.” United States v.
Campbell, 491 F.3d 1306, 1317 (11th Cir. 2007).
Because Farrelly’s sentence is not one of the “rare” substan-
tively unreasonable sentences resulting from an abuse of a district
court’s “very broad discretion” in sentencing, United States v.
McQueen, 727 F.3d 1144, 1156 (11th Cir. 2013), we affirm.
CONCLUSION
Because the district court didn’t abuse its discretion when it
denied Farrelly’s motion to withdraw his plea or when it imposed
his sentence, we affirm.
AFFIRMED.