USA v. Michael Rivers

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-15338
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D.C. Docket No. 6:13-cr-00087-PGB-TBS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL RIVERS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 25, 2016)
Before ED CARNES, Chief Judge, DUBINA, Circuit Judge, and HUCK,* District
Judge.
PER CURIAM:
* Honorable Paul C. Huck, United States District Judge for the Southern District of
Florida, sitting by designation.
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Nearly four months after Michael Rivers pleaded guilty to wire fraud,
money laundering, and identity theft charges, he moved to withdraw his guilty
plea, contending that his former attorney had coerced him into pleading guilty.
The district court denied that motion. This is Rivers’ appeal.
I.
In 2009 Michael Rivers founded Global Business Genesis, LLC, a company
that purportedly provided wireless banking software to major banks in developing
countries. He and his wife made a number of fraudulent statements about GBG to
investors, who gave them over $1.2 million, which they spent on luxury cars and
other personal items. When the two of them were indicted on federal charges
related to that fraud in April 2013, the district court appointed attorney Andrew
Chmelir to represent Rivers.
In February 2014 the government filed a 21-count second superseding
indictment charging Rivers and his wife with one count of conspiracy to commit
wire fraud, in violation of 18 U.S.C. § 1349; eight counts of wire fraud, in
violation of 18 U.S.C. § 1343; one count of conspiracy to commit money
laundering, in violation of 18 U.S.C. § 1956(h); eight counts of money laundering,
in violation of 18 U.S.C. § 1957(a); and three counts of aggravated identity theft,
in violation of 18 U.S.C. § 1028A(a)(1), (2).
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In March 2014, four days before the scheduled trial date, Rivers appeared
before a magistrate judge and pleaded guilty without a plea agreement to all of the
charges in the indictment. At the change of plea hearing, the magistrate judge
conducted a thorough Rule 11 plea colloquy, during which Rivers testified under
oath that he understood the nature of the charges against him, including the
maximum penalties associated with each charge. Rivers also admitted that the
facts alleged in the second superseding indictment, except for the amount of loss,
were “true and accurate.”
At that hearing, Rivers also agreed under oath that he had not been coerced
or pressured into pleading guilty:
THE COURT: Are you pleading guilty because you are
guilty?
THE DEFENDANT: Yes.
THE COURT: Did anyone use duress or intimidation or
threats to cause you to change your plea
from not guilty to guilty?
THE DEFENDANT: No.
THE COURT: Has anyone promised you anything to cause
you to change your plea from not guilty to
guilty?
THE DEFENDANT: No.
THE COURT: Are you entering your plea of guilty freely
and voluntarily?
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THE DEFENDANT: Yes.
THE COURT: Do you believe that it is in your best
interest?
THE DEFENDANT: Yes.
Doc. 212 at 23. Rivers also testified that he was satisfied with the representation
provided by his court-appointed attorney, Andrew Chmelir:
THE COURT: Sir, have you fully discussed this case with
your lawyer before deciding to enter a plea
of guilty?
THE DEFENDANT: Yes.
THE COURT: Are you satisfied with your attorney’s legal
representation to this point in the case?
THE DEFENDANT: Yes.
THE COURT: Do you have any concerns or complaints
about your attorney?
THE DEFENDANT: No.
Id. at 24–25. After the change of plea hearing, the magistrate judge filed a report
recommending that the district court accept Rivers’ guilty plea, and Rivers filed a
notice waiving his objections to that recommendation. The next day, the district
court accepted the magistrate judge’s recommendation and adjudged Rivers guilty.
On May 15, 2014, the probation office issued a presentence investigation
report that calculated Rivers’ sentencing range as 168–210 months. Two weeks
later, attorney Chmelir moved to withdraw as counsel, citing undisclosed conflicts
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with Rivers. After an ex parte hearing, that motion was granted and new counsel
was appointed for Rivers. A few weeks later, Rivers replaced his newly-appointed
counsel with retained attorney Victor Martinez.
On July 18, 2014, Rivers, through Martinez, filed a motion to withdraw his
guilty plea. Rivers alleged that Chmelir had coerced him into pleading guilty by
failing to investigate or prepare for trial, by pressuring him to plead guilty in order
to help his wife, by misadvising him about the sentencing guidelines, and by telling
him that he faced no more than five years in prison. Rivers emphasized, however,
that his request to withdraw his guilty plea was “not based upon the PSR report or
the guideline calculations contained within [it].” Rivers did not ask for an
evidentiary hearing on his motion.
Without holding a hearing, the district court denied Rivers’ motion to
withdraw his guilty plea, concluding that Rivers’ allegations were contradicted by
the record, including his own sworn testimony at the change of plea hearing. After
the court sentenced Rivers to 204 months in prison, he appealed.
II.
After the district court accepts a defendant’s guilty plea but before it
imposes a sentence, the defendant may withdraw his plea if he “can show a fair
and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). But
“there is no absolute right to withdraw a guilty plea.” United States v. Buckles,
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843 F.2d 469, 471 (11th Cir. 1988). “The decision to allow withdrawal is left to
the sound discretion of the trial court.” Id. We review the district court’s denial of
a motion to withdraw for abuse of discretion. United States v. Brehm, 442 F.3d
1291, 1298 (11th Cir. 2006). We will not reverse the district court unless its
decision “is arbitrary or unreasonable.” Id. (quotation marks omitted).
To determine whether a defendant has provided a “fair and just” reason to
withdraw his guilty plea, the district court “may consider the totality of the
circumstances surrounding the plea,” 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.” Id. (quotation marks omitted). “The good faith, credibility, and weight of a
defendant’s assertions in support of a motion to withdraw a guilty plea are issues
for the trial court to decide.” Id. (quotation marks and alterations omitted).
Rivers contends that the district court abused its discretion by denying his
motion to withdraw his guilty plea because he provided two “fair and just” reasons
for withdrawal: first, that his plea was not knowing and voluntary, and second,
that he lacked the close assistance of counsel. He also argues that the district court
should have held an evidentiary hearing on his motion before denying it. We
disagree.
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A.
We turn first to whether the district court was required to hold an evidentiary
hearing before ruling on Rivers’ motion to withdraw his guilty plea. In his opening
brief, Rivers argues that “because the record does not conclusively respond to all
of [his] allegations, the district court should have conducted an evidentiary hearing
assessing the veracity of [his] claims.” Appellant’s Br. at 19–20. But Rivers did
not request an evidentiary hearing, and he did not object to the denial of his motion
without one being held. Because he raises the issue of an evidentiary hearing for
the first time on appeal, we review the district court’s decision not to hold one only
for plain error. See United States v. Dudley, 463 F.3d 1221, 1227 (11th Cir. 2006).
“Under plain error review, there must be (1) an error, (2) that is plain, and (3)
affects substantial rights.” Id. “When these three factors are met, we may exercise
discretion and correct the error if it seriously affects the fairness, integrity, or
public reputation of the judicial proceedings.” Id.
Rivers has not cited a single decision, from this Court or elsewhere, holding
that a district court errs by failing to hold an evidentiary hearing on a defendant’s
motion to withdraw his guilty plea where the defendant himself has not requested
one. Not only that, but binding precedent suggests that, even where a defendant
does request an evidentiary hearing on his motion to withdraw, a district court does
not abuse its discretion in denying that request if it “conducted extensive Rule 11
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inquiries prior to accepting the guilty plea.” Brehm, 442 F.3d at 1298. Under
these circumstances, the district court’s failure to hold an evidentiary hearing
before denying Rivers’ motion to withdraw was not error, much less plain error.
See United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003) (“[T]here
can be no plain error where there is no precedent from the Supreme Court or this
Court directly resolving [the issue].”).
B.
Rivers also contends that the district court abused its discretion by denying
his motion to withdraw his guilty plea because “certain deficiencies” in the plea
colloquy rendered his plea unknowing and involuntary.1 See Brehm, 442 F.3d at
1298. Before accepting a defendant’s guilty plea, the district court must ensure
that the plea is “knowing and voluntary.” United States v. Symington, 781 F.3d
1308, 1314 (11th Cir. 2015). The court’s inquiry “varies from case to case
depending on the relative difficulty of comprehension of the charges and of the
defendant’s sophistication and intelligence.” United States v. DePace, 120 F.3d
233, 237 (11th Cir. 1997) (quotation marks omitted). In every case, however, the
court “must address three core concerns underlying Rule 11: (1) the guilty plea
must be free from coercion; (2) the defendant must understand the nature of the
1 Because we conclude that this challenge fails on the merits, we do not address the
government’s argument that Rivers waived it when he waived his objections to the magistrate
judge’s report recommending that the district court accept his plea.
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charges; and (3) the defendant must know and understand the consequences of his
guilty plea.” Symington, 781 F.3d at 1314.
Rivers asserts that the magistrate judge did not fully inform him of the
nature of the charges against him. We disagree. At the change of plea hearing, the
magistrate judge reviewed each element of each crime charged in the second
superseding indictment, as well as the maximum penalties associated with each
crime. Rivers agreed under oath that he understood all of that. He also agreed
under oath that the factual allegations in the second superseding indictment, except
for the amount of loss, were “true and accurate.” That was enough to allow the
district court to conclude that Rivers, who holds a graduate degree, understood the
nature of the charges against him before he pleaded guilty. See DePace, 120 F.3d
at 237.
Rivers also asserts that he did not fully understand the consequences of his
plea because the magistrate judge did not explain the sentencing guidelines to him.
Again, we disagree. At Rivers’ change of plea hearing, the magistrate judge
addressed the sentencing guidelines as follows:
THE COURT: The Federal Sentencing Guidelines apply in
your case. Has your lawyer discussed the
sentencing guidelines with you?
THE DEFENDANT: Yes.
THE COURT: Sir, do you have any unanswered questions
about the sentencing guidelines?
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THE DEFENDANT: Not at this time.
THE COURT: I want to highlight a couple of points for
you. First, I want to make sure that you
understand that it is the district judge who
will make your sentencing guidelines range
calculation. . . .
I also want to make sure you understand that
the sentencing guidelines are advisory.
They’re not binding on the district judge.
The district judge may impose a sentence
that is consistent with what the guidelines
recommend, but the district judge may also
impose a sentence that is harsher or more
lenient than what the guidelines recommend.
In sum, as we sit here this afternoon, none of
us knows precisely what your sentencing
guidelines range calculation will be and
none of us knows what sentence you are
going to receive.
Do you understand all of that, sir?
THE DEFENDANT: Yes.
Doc. 212 at 12–13. As that exchange demonstrates, the magistrate judge “elicited
from [Rivers] at the plea proceeding that he knew about the Sentencing Guidelines
and that he had discussed the effect of the sentencing guidelines on his sentence
with his attorney.” United States v. Mosley, 173 F.3d 1318, 1328 (11th Cir. 1999).
“With respect to the Sentencing Guidelines, that is all we require the district judge
to do.” Id. The magistrate judge was not required to calculate and communicate
Rivers’ estimated guidelines sentencing range to him or explain to him which
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guidelines enhancements might have been applicable to his case. See United
States v. Casallas, 59 F.3d 1173, 1180 (11th Cir. 1995).
In his motion to withdraw, Rivers admitted that he had “answered the court’s
questions appropriately to satisfy the Rule 11 inquiry.” Doc. 217 at 5. We agree.
Because the magistrate judge did all that was required to ensure that Rivers
knowingly and voluntarily entered his guilty plea, Rivers was not entitled to
withdraw his plea on that basis.
C.
Finally, Rivers contends that the district court abused its discretion by
denying his motion to withdraw because he lacked the “close assistance” of
counsel. See Brehm, 442 F.3d at 1298 (quotation marks omitted). In his motion to
withdraw, Rivers alleged that Chmelir had provided him with ineffective assistance
of counsel by failing to prepare for trial, by pressuring him to plead guilty, and by
giving him erroneous sentencing advice. According to Rivers, “[h]ad Chmelir
properly investigated [his] case and prepared a defense strategy, [he] would not
have entered a guilty plea, but would have insisted that his case be taken to trial.”
Doc. 217 at 10.
The district court rejected that argument for two independent reasons. First,
the court found that Rivers’ belated allegations about Chmelir were contradicted by
the record, including Rivers’ sworn testimony at the change of plea hearing, which
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indicated that Chmelir had provided adequate representation. The court also
concluded that, even if Chmelir had been ineffective, Rivers was not entitled to
withdraw his guilty plea on that basis because he had failed to adequately allege
that he was prejudiced by Chmelir’s conduct. Because we agree with the court’s
second conclusion, we do not address the first.
To withdraw a guilty plea based on the ineffective assistance of counsel, a
defendant must allege and then show not only that his attorney’s conduct “fell
below an objective standard of reasonableness,” but also that he was prejudiced by
that conduct — in other words, that “there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.” Hill v. Lockhart, 474 U.S. 52, 57–59, 106 S. Ct. 366, 369–71
(1985) (quotation marks omitted). A conclusory allegation of prejudice is not
sufficient. See id. at 59–60, 106 S. Ct. at 370–71. Instead, the defendant must
allege specific facts suggesting that he would not have decided to plead guilty but
for his attorney’s alleged errors or omissions. For example, “where the alleged
error of counsel is a failure to investigate or discover potentially exculpatory
evidence,” the defendant is required to allege specific facts showing that “the
[undiscovered] evidence likely would have changed the outcome of a trial.” Id. at
59, 106 S.Ct. at 370.
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In his motion to withdraw, Rivers did not allege that he decided to plead
guilty based on Chmelir’s erroneous sentencing advice or the pressure he felt to
help his wife. He alleged only that, “[h]ad Chmelir properly investigated [his] case
and prepared a defense strategy, [he] would not have entered a guilty plea, but
would have insisted that his case be taken to trial.” Doc. 217 at 10. Specifically,
Rivers alleged that he had “advised Chmelir of potential evidence that needed to be
obtained and reviewed as well as the names and contact information for potential
defense witnesses,” and that “Chmelir never followed-up on these matters.” Id. at
3. But Rivers did not identify the witnesses or the evidence that Chmelir allegedly
failed to investigate, nor did he explain how any of that would have changed the
outcome of his case. Nor did Rivers request an evidentiary hearing on his
allegations. Without any specific factual allegations or evidence, the court had no
way to determine whether Rivers had suffered prejudice from Chmelir’s alleged
ineffectiveness. See Hill, 474 U.S. at 59–60, 106 S. Ct. at 370–71. Under those
circumstances, we cannot conclude that the court’s denial of Rivers’ motion to
withdraw his guilty plea was “arbitrary or unreasonable.” Brehm, 442 F.3d at
1298 (quotation marks omitted); cf. Winthrop-Redin v. United States, 767 F.3d
1210, 1219–20 & n.5 (11th Cir. 2014) (affirming summary denial of ineffective
assistance claim where petitioner provided “no specific facts connecting his
attorney’s advice . . . with [his] decision to plead guilty”).
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AFFIRMED.
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