United States v. Fabian Lennox Johnson , 182 F. App'x 919 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 04-13646 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 23, 2006
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 03-20226-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FABIAN LENNOX JOHNSON,
a.k.a. Quinn Jeffery Johnson,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 23, 2006)
Before EDMONDSON, Chief Judge, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Defendant-Appellant Fabian Johnson appeals his cocaine conspiracy
conviction after his plea of guilty. Johnson contends the district court erred by
denying his request for leave to withdraw his guilty plea. No reversible error has
been shown; we affirm.
Johnson pleaded guilty pursuant to a written plea agreement to conspiracy
to possess with intent to distribute five kilograms or more of cocaine, in violation
of 21 U.S.C. § 846. At the Rule 11 proceedings held on 7 November 2004, among
other things, Johnson told the court that he had discussed the application of the
Sentencing Guidelines to his case with his lawyer, he acknowledged his
understanding of the minimum and maximum statutory penalties, and he
recognized that no guideline sentence could be determined until a PSI was
prepared. Johnson was also advised that both he and the government would have
an opportunity to challenge the PSI, and that the sentencing court could, in some
circumstances, impose sentence above or below the guidelines range.
After Johnson’s plea was accepted by the district court but before Johnson
was sentenced, the Supreme Court issued its opinion in Blakely v. Washington,
124 S.Ct. 2531 (2004). At his sentencing hearing, Johnson argued that the
sentencing court should apply Blakely to Johnson’s sentencing and calculate
Johnson’s guideline sentencing range only on facts included in the indictment. If
the sentencing court was unwilling to apply Blakely in this manner, Johnson
requested leave to withdraw his guilty plea. The sentencing court denied the
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request: when Johnson entered his plea he understood that judicial fact-finding
would be determinative of the sentence imposed; Johnson was not misled.
Johnson filed an appeal raising two challenges to his sentence and also
claiming that the district court should have allowed him to withdraw his plea. The
government moved to dismiss the appeal based on a valid sentence appeal waiver
in his plea agreement. Based on the appeal waiver, by order of 24 August 2005,
we dismissed issues challenging the imposition of sentence. Even though Johnson
sought to withdraw his guilty plea based on a sentencing issue, the waiver of the
right to appeal “any sentence imposed” has no application to the denial of
Johnson’s request to withdraw his guilty plea; the plea withdrawal issue is distinct
from the calculation of sentence or the manner in which sentence was imposed.
See United States v. Copeland, 381 F.3d 1101, 1104-05 (11th Cir. 2004) (waiver of
right to appeal “any sentence imposed” did not preclude appeal of issue claiming
government breach of plea agreement). Johnson did not waive his right to appeal
the denial of his request to withdraw his plea.
We review the denial of a request to withdraw a guilty plea for an abuse of
discretion. United States v. Najjar, 283 F.3d 1306, 1307 (11th Cir. 2002). We will
reverse the district court under this standard only if its decision is “arbitrary and
unreasonable.” Id. After a guilty plea has been accepted but before sentence
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imposed, the guilty plea may be withdrawn if “the defendant can show a fair and
just reason for requesting the withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). And,
when considering whether a defendant advances a fair and just reason for
withdrawal,
the district court evaluates the totality of the
circumstances, 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.
Najjar, 283 F.3d at 1309 (quotation and citation omitted).
In support of his contention that the district court abused its discretion,
Johnson cites no infirmity in the Rule 11 proceedings or the court’s acceptance of
his plea. Johnson makes no reference to the factors that are dispositive of this
issue. Instead, he says only that “the decision in Blakely has effected an enormous
change with regard to sentencing procedures,” and that his request was not
frivolous in the light of Blakely. But “a voluntary plea of guilty intelligently made
in the light of the then applicable law does not become vulnerable because later
judicial decisions indicate that the plea rested on a faulty premise.” Brady v.
United States, 90 S.Ct. 1463, 1473 (1970). Johnson sought to withdraw his plea
to take advantage of the possibility of a more lenient sentence. Johnson was
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sentenced under the guidelines in the manner he expected when he entered his
plea. Absent an infirmity in the plea, a district court commits no abuse of
discretion when, as here, permission to withdraw is refused to a defendant who
seeks to take advantage of intervening changes in federal sentencing law.
The government’s motion to dismiss Johnson’s appeal of the denial of his
request to withdraw his plea based on the sentence appeal waiver is DENIED;
Johnson’s conviction is AFFIRMED.
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