USCA11 Case: 21-13874 Date Filed: 09/28/2022 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13874
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUSTAVO RAVELO,
a.k.a. Pit Bull.
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:15-cr-80077-RLR-4
____________________
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2 Opinion of the Court 21-13874
Before ROSENBAUM, GRANT, and MARCUS, Circuit Judges.
PER CURIAM:
Gustavo Ravelo, proceeding with counsel, appeals the dis-
trict court’s denial of his pro se motion to withdraw his guilty plea
as to his charge of conspiracy to possess with intent to distribute a
controlled substance. On appeal, Ravelo argues that the district
court unreasonably denied his motion to withdraw his plea be-
cause: (1) he did not enter the plea knowingly and voluntarily and
his first attorney failed to explain the proceedings and sufficiently
examine the evidence; and (2) he has a claim of factual innocence.
After careful review, we affirm.
When a district court denies a defendant’s motion to with-
draw his guilty plea filed after the court accepted his plea, but be-
fore sentencing, we review the denial for abuse of discretion.
United States v. Buckles,
843 F.2d 469, 471 (11th Cir. 1988). The
district court does not abuse its discretion unless the denial of the
motion was “arbitrary or unreasonable.”
Id. A defendant may
withdraw his plea that the district court already accepted if he
shows “a fair and just reason” for doing so.
Fed. R. Crim. P. 11(d)(2)(B).
In determining whether the defendant has presented a fair
and just reason for withdrawing his plea of guilty, “the district
court may consider the totality of the circumstances surrounding
the plea.” Buckles,
843 F.2d at 471–72. This includes whether:
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21-13874 Opinion of the Court 3
(1) close assistance of counsel was available; (2) the plea was know-
ing and voluntary; (3) judicial resources would be conserved; and
(4) the government would be prejudiced if the defendant withdrew
his plea. United States v. Siegel,
102 F.3d 447, 481 (11th Cir. 1996).
If we hold that the defendant received close assistance of counsel
and knowingly and voluntarily entered his plea, we do not give the
third factor “considerable weight” or the fourth factor “particular
attention.” United States v. Gonzalez-Mercado,
808 F.2d 796, 801
(11th Cir. 1987).
“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). 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) (quotation marks omitted). The
defendant’s later-raised claim of actual innocence “does not entitle
him to withdraw his plea.” United States v. McCarty,
99 F.3d 383,
385–86 (11th Cir. 1996).
For a defendant to knowingly and voluntarily enter a plea,
the plea must comply with Rule 11. United States v. Moriarty,
429 F.3d 1012, 1019 (11th Cir. 2005); Fed. R. Crim. P. 11(b). Under
Rule 11, before the district court may accept a guilty plea, it must
inform the defendant of, among other things, his rights should he
plead not guilty, the nature of the charges against him, the maxi-
mum and mandatory minimum penalties, the court’s obligation to
impose a special assessment, the court’s obligation to calculate his
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4 Opinion of the Court 21-13874
advisory guideline range and consider possible departures and sen-
tencing factors under
18 U.S.C. § 3553(a), and the terms of any ap-
peal waivers contained in the plea agreement. Fed. R. Crim. P.
11(b)(1)(B)-(E), (G)-(N). If the defendant is not a U.S. citizen, the
district court must inform him that, upon conviction, he may be
removed from the United States, denied citizenship, and denied
re-entry. Id. 11(b)(1)(O). The district court must also explain that
a guilty plea waives the defendant’s trial rights and ensure that the
plea is entered voluntarily and is supported by a sufficient factual
basis. Id. 11(b)(1)(F), (b)(2)-(3). Further, the district court must ex-
plain that the defendant can be prosecuted for perjury if he lies un-
der oath. Id. 11(b)(1)(A).
However, a court’s failure to advise a defendant of each of
Rule 11’s enumerated items is harmless error if it does not affect
the defendant’s substantial rights. Fed. R. Crim. P. 11(h); United
States v. Dominguez Benitez,
542 U.S. 74, 81 (2004). In evaluating
whether a Rule 11 error substantially affected a defendant’s rights,
we examine Rule 11’s three “core principles,” which are “ensuring
that a defendant: (1) enters his guilty plea free from coercion,
(2) understands the nature of the charges, and (3) understands the
consequences of his plea.” Moriarty, 429 F.3d at 1019. In deter-
mining if the district court met the core principles, we look to the
whole record. United States v. Presendieu,
880 F.3d 1228, 1239–40
(11th Cir. 2018).
As for the first core principle, Rule 11 elaborates that the dis-
trict court must ensure that the plea did not result from “force,
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21-13874 Opinion of the Court 5
threats, or promises (other than promises in a plea agreement).”
Fed. R. Crim. P. 11(b)(2). In some cases, a factual proffer, if de-
tailed enough to “effectively incorporate[] the substance of the ele-
ments of the offense,” may satisfy the second core requirement.
Presendieu, 880 F.3d at 1239. However, the district court should
not assume that the defendant understands the charges simply be-
cause he agrees that the charges were read to him without referring
to the elements of the offense at any other point. United States v.
Telemaque,
244 F.3d 1247, 1249 (11th Cir. 2001). Rather, the dis-
trict court should refer to the elements or verify that counsel
helped the defendant understand the charges.
Id.
“To ensure compliance with the third core concern,
Rule 11(b)(1) provides a list of rights and other relevant matters
about which the court is required to inform the defendant prior to
accepting a guilty plea.” Moriarty, 429 F.3d at 1019; see
Fed. R. Crim. P. 11(b)(1). Rule 11 provides, in relevant part, that
before the court may accept a guilty plea, it “must inform the de-
fendant of, and determine that the defendant understands, . . . any
maximum possible penalty, including imprisonment, fine, and
term of supervised release; any mandatory minimum penalty; any
applicable forfeiture; the court’s authority to order restitution;
[and] the court’s obligation to impose a special assessment.”
Fed. R. Crim. P. 11(b)(1)(H)-(L).
In this case, Ravelo has not shown that the district court
abused its discretion by denying his motion to withdraw his plea.
As the record reflects, Ravelo testified at his plea hearing that he:
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6 Opinion of the Court 21-13874
(1) understood the proceedings and did not need an interpreter, but
would interrupt the district court if he did not understand some-
thing; (2) spoke and understood spoken English well, although he
could not read or write it well; (3) discussed both the charges and
plea agreement with his attorney; (4) reviewed “all of the discov-
ery, that is, the evidence” the government said it would introduce
at a trial; (5) understood the indictment, plea agreement, sentenc-
ing procedures, and potential sentences; (6) understood the facts as
presented by the government and agreed the government could
prove them, and did not have any questions about them; and (7)
was satisfied with his attorney’s answering of his questions and
overall advice and representation, and there was no legal research
or investigation that he’d asked his attorney to do that he had not
done. Ravelo affirmed at the plea hearing that he entered his plea
of his own free will and that he understood the charges, and the
court and government explained at length the nature of the charges
and consequences of his plea both in the plea agreement and at the
hearing. Ravelo’s attorney spoke at the colloquy as well, informing
the court that he communicated with Ravelo in English, that he
had read everything aloud to him, and that the defendant had no
trouble understanding the proceedings.
Ravelo has since argued that the statements he made at his
plea colloquy were not true. So, for instance, he now disagrees
with his statement that affirmatively disavowed that he had been
pressured to plead guilty. In addition, he refutes his statements af-
firming that his attorney had “discusse[ed]” the plea agreement and
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21-13874 Opinion of the Court 7
charges in the indictment with him, that he had reviewed “all of
the discovery, that is, the evidence” the government said it would
introduce at a trial, that he understood the stipulated facts of the
case, and that he was fully satisfied with his attorney’s advice and
representation. He also directly contradicts his attorney’s state-
ment at the colloquy that he had read everything aloud to Ravelo
and that Ravelo had no trouble understanding the proceedings.
However, as we’ve said, there is a strong presumption that
the statements the defendant made at his plea colloquy were true,
and the district court was entitled to weigh his testimony at his col-
loquy more heavily than his later testimony. See Medlock,
12 F.3d
at 187; Moriarty, 429 F.3d at 1019. Ravelo has not met his “heavy
burden” of showing that the statements that he made under oath
at his plea hearing were false. Rather, the record as a whole sup-
ports the district court’s determination that Ravelo had received
close assistance of counsel in deciding to plead guilty -- especially
considering Ravelo’s repeated and consistent statements at the plea
colloquy that he had discussed all aspects of the case with his attor-
ney and that he understood spoken English well, his attorney’s rep-
resentations of the same, and Ravelo’s decision not to have an in-
terpreter at the plea colloquy, despite the court’s invitations for
him to do so. Indeed, even at his arraignment, Ravelo said that he
spoke fluent English and did not need an interpreter. The record
also includes ample evidence, including the district court’s thor-
ough questioning of the defendant at the plea colloquy, in support
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8 Opinion of the Court 21-13874
of the court’s determination that Ravelo had knowingly and volun-
tarily entered his plea.
As for Ravelo’s claim of actual innocence, our case law is
clear that a claim like this “does not entitle him to withdraw his
plea.” McCarty,
99 F.3d at 385–86. In any event, Ravelo confirmed
at the plea hearing that he was, in fact, guilty, based on the evidence
that the government indicated that it would present at a trial, and,
moreover, there is overwhelming evidence in the record of his
guilt. Accordingly, Ravelo has not shown that the district court
abused its discretion by denying his motion to withdraw his plea,
and we affirm.
AFFIRMED.
