USA v. Orestes Cabrera

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 24, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-11620
Non-Argument Calendar
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D. C. Docket No. 08-00077-CR-3-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ORESTES CABRERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
_________________________
(February 24, 2010)
Before BARKETT, HULL and ANDERSON, Circuit Judges.
PER CURIAM:

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Following his convictions for (1) conspiring to distribute and possess with
intent to distribute 5 kilograms or more of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1); 841(b)(1)(a)(ii); and 846, and (2) possession with intent to distribute
500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1);
841(b)(1)(B)(ii), Orestes Cabrera appeals the district court’s denial of his motion
to withdraw his guilty plea. Cabrera argues that the district court erred by
disregarding his claim that he should be permitted to withdraw his guilty plea
because defense counsel did not explain to him that a pre-plea motion could be
filed to suppress the cocaine found in the rental vehicle he was driving when
police stopped him. Cabrera contends that if he had known that he could file a
suppression motion, he would not have entered a guilty plea. Cabrera also argues
that, regardless of whether he was correct in his belief that such a motion would
have been granted, his counsel was ineffective for never informing him that he
could challenge the search and seizure.
We will begin by noting that the government mischaracterized Cabrera’s
argument as an ineffective-assistance-of-counsel claim. Cabrera is actually
challenging the district court’s failure to allow him to withdraw his plea, arguing
that the district court erred in refusing to address his claim that, but for counsel’s
failure to advise him of the availability of a suppression motion, he would not
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have pled guilty. Cabrera is therefore entitled to face the “fair and just” plea
withdrawal standard, rather than “the Strickland standard” used for deciding
ineffective-assistance claims.1
The district court may permit a defendant to withdraw a guilty plea before
the court imposes a sentence if the defendant “can show a fair and just reason for
requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). We review the district
court’s decision to deny a defendant’s motion to withdraw a guilty plea for abuse
of discretion. United States v. McCarty, 99 F.3d 383, 385 (11th Cir. 1996). “The
district court may be reversed only if its decision is arbitrary or unreasonable.”
United States v. Buckles, 843 F.2d 469, 471 (11th Cir. 1988). The good faith,
credibility, and weight of the defendant’s representations in support of the motion
to withdraw are issues for the trial court to decide. Id. at 472. “An appellate court
must review the record of the Rule 11 hearing as a whole and affirm the district
court if the record provides a basis for the court’s finding that the defendant
understood what he was admitting and that what he was admitting constituted the
crimes charged.” United States v. Siegel, 102 F.3d 477, 480 (11th Cir. 1996).
Three core due process concerns underlie Rule 11: (1) the guilty plea must
be free from coercion; (2) the defendant must understand the nature of the charges;
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). 1
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and (3) the defendant must know and understand the direct consequences of his
plea. United States v. Mosley, 173 F.3d 1318, 1322 (11th Cir. 1999). If one of the
core concerns is not satisfied, then the guilty plea is invalid. Siegel, 102 F.3d at
481. While provisions of the rule of criminal procedure regarding withdrawal of a
guilty plea before sentencing should be construed and applied liberally, see United
States v. Rasmussen, 642 F.2d 165, 167 (11th Cir. 1981), there is no absolute right
to withdraw a guilty plea, United States v. Medlock, 12 F.3d 185, 187 (11th Cir.
1994). There is a strong presumption that statements made by a defendant during
the plea colloquy are true. Medlock, 12 F.3d at 187. Consequently, a defendant
bears a heavy burden to show that his statements under oath were false. United
States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988). In determining if the
defendant has met his burden to show a “fair and just reason” for plea withdrawal,
a district court may consider the totality of the circumstances surrounding the plea,
including whether: (1) close assistance of counsel was available; (2) the plea was
knowing and voluntary; (3) judicial resources would be conserved; and (4) the
government would be prejudiced if the defendant were allowed to withdraw his
plea. Buckles, 843 F.2d at 472.
After reviewing the transcript of the Rule 11 hearing, we are convinced that
Cabrera’s plea was free from coercion; that Cabrera understood the nature of the
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charges; and that Cabrera knew and understood the direct consequences of his
plea. Because Cabrera received close assistance of counsel and entered his plea
knowingly and voluntarily, he failed to show a fair and just reason why his motion
to withdraw his plea should have been granted. Therefore, the district court did
not abuse its discretion by denying the motion and accordingly, we affirm.
AFFIRMED.
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