United States v. Jacqueline Pitts

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-11382 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 8, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:09-cr-00547-EAK-MAP-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JACQUELINE PITTS,
a.k.a. Jacqueline Jasper,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 8, 2012)
Before TJOFLAT, EDMONDSON and BARKETT, Circuit Judges.
PER CURIAM:
Jacqueline Pitts appeals her convictions for the conspiracy to possess with
the intent to distribute cocaine, the attempt to possess with the intent to distribute
cocaine, the possession of a firearm during a drug trafficking crime, and the
possession of a firearm by a convicted felon. On appeal, Pitts argues that the
district court erred in denying her motion to withdraw her guilty plea because she
lacked close assistance of counsel and her plea was not knowing and voluntary.
We review for an abuse of discretion a district court’s decision to deny a
motion to withdraw a guilty plea. United States v. Brehm, 442 F.3d 1291, 1298
(11th Cir. 2006). The district court does not abuse its discretion unless its
decision is arbitrary or unreasonable. Id. (quotation omitted).
The district court may allow a defendant to withdraw a guilty plea after the
court has accepted the plea but before it has imposed a sentence if “the defendant
can show a fair and just reason for requesting the withdrawal.” Fed.R.Crim.P.
11(d)(2)(B). The district court “may consider the totality of the circumstances
surrounding the plea.” Brehm, 442 F.3d at 1298 (quotation omitted). We consider
four factors when reviewing the district court’s decision: “(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. (quotation omitted).
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A guilty plea is knowing and voluntary if the defendant entered the plea
without coercion and understands the nature of the charges and the consequences
of the plea. United States v. Brown, 586 F.3d 1342, 1346 (11th Cir. 2009), cert.
denied, 130 S.Ct. 2403 (2010). When a defendant has received close assistance of
counsel and pleaded guilty knowingly and voluntarily, we have declined to give
considerable weight or attention to the third and fourth factors. United States v.
Gonzalez-Mercado, 808 F.2d 796, 801 (11th Cir. 1987). The district court may
consider the timing of the defendant’s request to withdraw a guilty plea. United
States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988). A significant delay between
the plea and the request to withdraw suggests a calculated effort to improve one’s
position instead of a “swift change of heart.” Id. at 168-69; Gonzalez-Mercado,
808 F.2d at 801.
“There is a strong presumption that the statements made during the [plea]
colloquy are true.” United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994).
The defendant “bears a heavy burden” to show statements made under oath at a
plea colloquy were false. Rogers, 848 F.2d at 168. It is up to the district court to
determine “[t]he good faith, credibility and weight of a defendant's assertions in
support of a motion” to withdraw a guilty plea. Brehm, 442 F.3d at 1298(quotation omitted).
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Upon review of the record and consideration of the parties’ briefs, we affirm
as the district court did not abuse its discretion in denying Pitts’s motion to
withdraw her guilty plea. The record reflects that there was ample evidence for
the district court to conclude that Pitts had close assistance of counsel leading up
to her guilty plea and that her guilty plea was knowing and voluntary. At the plea
colloquy, Pitts stated that her attorney had fully and completely discussed the case
with her, had advised her of her constitutional rights and possible defenses, and
that she was completely satisfied with her attorney’s advice and representation.
The district court found that Pitts’s testimony at the hearing on the motion to
withdraw was insufficient to rebut the presumption that her testimony at the plea
hearing was true. Additionally, as found by the district court, the timing of Pitts’s
motion to withdraw her plea does not suggest a “swift change of heart.” See
Rodgers, 848 F.2d at 168-69; Gonzalez-Mercado, 808 F.2d at 801. Pitts’s motion
to withdraw her plea was filed approximately four months after her guilty plea and
on the heels of receiving the presentence investigation report, the day before the
scheduled sentencing hearing.
We find that the district court did not abuse its discretion when it denied
Pitts’s motion to withdraw her guilty plea.
AFFIRMED.
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