United States v. Mark Kirksey , 283 F. App'x 714 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 18, 2008
No. 07-14429 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00033-CR-1-MMP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK KIRKSEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(June 18, 2008)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Pursuant to a plea agreement, Mark Kirksey pled guilty to conspiring to
manufacture, distribute, and possess with intent to distribute cocaine, in violation
of 21 U.S.C. § 846. The plea agreement contained the following provision:
If, in the sole discretion of the United States Attorney,
Mark Kirksey is deemed to have provided substantial
assistance in the investigation or prosecution of other
persons who have committed offenses, if Mark Kirksey
has otherwise complied with all terms of this agreement,
and if this assistance is prior to sentencing . . . then the
United States Attorney will file a substantial assistance
motion. Determination whether the defendant has
provided substantial assistance will not depend on
charges being filed or convictions being obtained as a
result of defendant’s cooperation.
In entertaining Kirksey’s guilty plea, the district court informed Kirksey that
the charge carried a mandatory sentence of life imprisonment, explained that the
Government, in its discretion, could move the court to impose a lesser sentence,
and asked him if he understood this. Kirksey said that he did. In addition, both he
and his attorney assured the court that no promises other than those contained in
the plea agreement had been made by the Government or anyone else.
At a hearing held to select a date for sentencing, the prosecutor stated that
the Government did not intend to file a substantial assistance motion at sentencing.
Six days later, Kirksey moved the court for leave to withdraw his guilty plea. He
asserted that his plea had been based on his understanding that the Government
would file a substantial assistance motion at sentencing and that “his counsel and
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the Government had reached a plea deal whereby [he] would receive a ‘substantial
assistance’ sentencing reduction in exchange for his prior assistance, as well as his
plea of guilty.”
The district court held a hearing on the motion to withdraw at which Kirksey
and his lawyer testified.1 After considering this testimony and argument of
counsel, the court, on September 4, 2007, entered a seven-page order denying
Kirksey’s motion. Record, Vol. 1 at 292. The court denied the motion because, as
stated in the order, Kirksey had received close assistance of counsel, understood
the nature of his guilty plea, and the Government never promised to file a
substantial assistance motion. Rather, defense counsel simply told Kirksey that
he, counsel, “believed that [Kirksey] had done enough to earn a 5K1” . . . but had
to plead guilty to get one. Id. at 7.
At the subsequent sentencing hearing, the Government did not file a
substantial assistance motion, and the district court therefore sentenced Kirksey to
life imprisonment. He now appeals, contending that the court abused its discretion
in denying his motion to withdraw.
We review a district court’s decision denying a motion to withdraw a guilty
plea for abuse of discretion. United States v. Brehm, 442 F.3d 1291, 1298 (11th
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The gist of their testimony is set out in the court’s seven-page order denying Kirksey’s
motion. Record, Vol. 1 at 292.
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Cir.), cert. denied, 127 S. Ct. 457 (2006). Prior to sentencing, a defendant may
withdraw a plea of guilty if he “can show a fair and just reason for requesting the
withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). When deciding whether the defendant
has shown 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.” United States v.
Buckles, 843 F.2d 469, 471-72 (11th Cir. 1988). If, as here, the defendant has not
introduced evidence sufficient to carry the day on the first two of these four issues,
we need not “give particular attention” to the last two. United States v. Gonzalez-
Mercado, 808 F.2d 796, 801 (11th Cir. 1987).
We find no abuse of discretion in this case. As the district court properly
found in its September 4, 2007 order, Kirksey pled guilty knowingly and
voluntarily and with the benefit of close counsel. Moreover, he failed to establish a
fair and just reason for the withdrawal.
AFFIRMED.
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