USA v. Timothy Jarred Paige

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 19-13904
Non-Argument Calendar
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D.C. Docket No. 9:18-cr-80228-RLR-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TIMOTHY JARRED PAIGE,

Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 11, 2020)
Before MARTIN, ROSENBAUM and LUCK, Circuit Judges.

PER CURIAM:
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Timothy Paige pleaded guilty to possessing marijuana and oxycodone with
the intent to distribute them, possessing a firearm in furtherance of a drug-trafficking
crime, and possessing a firearm and ammunition after being convicted of a felony.
Paige argues on appeal that (1) he did not waive his appellate rights knowingly and
voluntarily; and (2) the district court abused its discretion by denying his motion to
withdraw his guilty plea. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Paige pleaded guilty, with a written plea agreement, to one count of possession
with intent to distribute marijuana and oxycodone, possession of a firearm in
furtherance of a drug trafficking crime, and possession of a firearm and ammunition
by a convicted felon. Paige agreed to “waive[] all rights . . . to appeal any sentence
imposed” unless the sentence exceeded the statutory maximum, the district court
imposed an upward departure or variance, or the government appealed.
At the start of his plea hearing, Paige was reluctant to go through with
pleading guilty. The district court told Paige he had three options: he could plead
guilty; the court could schedule a trial date; or he could talk some more with his
attorney. Paige chose to speak with his attorney, and the district court reset the
hearing for later in the day. After the recess, Paige said he was ready to plead guilty
but that he was dissatisfied with his attorney. The district court then referred Paige
and his attorney to a magistrate judge for an inquiry into the representation.
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Paige told the magistrate judge that his lawyer was good at what he did and
that he could not speak badly about his lawyer’s performance but that he was
dissatisfied he had not received positive results in his case. Paige agreed that his
attorney had discussed the government’s witnesses and evidence with him and had
also conducted discovery on his behalf. Paige’s attorney had discussed multiple
defenses with him, investigated potential defense witnesses, talked through
strategies, and answered his questions. Paige’s attorney responded to any issues
Paige raised and had filed a motion to suppress on Paige’s behalf. The magistrate
judge gave Paige and his counsel some time to discuss the plea between themselves.
Paige then told the magistrate judge that he was ready to plead guilty and would do
so in front of the district judge.
Back before the district court for the third time that day, Paige said he had
enough time to think about the plea agreement and discuss it with his attorney. He
told the court that he had read the agreement and discussed it with his attorney before
he signed it. He said he understood all its terms. At the court’s direction, the
government explained the terms to Paige, including one of the “most significant
provisions” of the agreement: the sentence-appeal waiver.
Paige told the court that he did not understand the government’s explanation
of the appeal waiver, so the district court broke it down for him. The court said
Paige had a right to appeal his sentence under certain statutes, but, because of his
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negotiations with the government, he was giving up the right to appeal the sentence
the district court imposed. The court also explained the exceptions to the waiver,
including the government’s ability to appeal the sentence. Paige himself gave a
summary: “So, if I waive my rights, [the government] still ha[s] theirs?” The court
agreed but added that if the government appealed the sentence, so could Paige. The
district court went on to give Paige examples in which the waiver would and would
not apply. Paige said he understood everything the court described and did not have
any other questions about the waiver. He testified that no one had forced him to
ag ree to the waiver and that he agreed to the waiver knowingly and voluntarily and
fully understood its terms.
The government also explained the other “significant provision[]” of the plea
agreement—that Paige and the government agreed to recommend that the district
court vary downward to a twenty-year sentence if Paige qualified as a career
offender. Paige asked the district court about this provision. The court explained
that the plea agreement called for Paige and the government jointly to recommend a
twenty-year sentence but that the district court was not bound by that
recommendation.
Further, the district court identified the charges Paige would plead to and the
rights he was giving up. The court also went over the maximum sentence. In
response to the court’s questions, Paige said he was not coerced to enter the plea.
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Although Paige expressed some hesitancy given the potential sentence he faced, he
ultimately waived his right to trial and pleaded guilty. The district court accepted
Paige’s plea.
Two months later, Paige filed a pro se motion to withdraw his guilty plea and
a month after that filed a counseled motion (with new counsel) to withdraw or vacate
his guilty plea. The district court denied the pro se motion and adopted the
magistrate judge’s report and recommendation to deny the counseled motion. The
district court applied the four Buckles factors. See United States v. Buckles, 843
F.2d 469, 472 (11th Cir. 1988). For the first factor, the court found that Paige had
the close assistance of counsel who discussed the case with him, advised him of his
options, and filed a motion to suppress. For the second factor, the district court found
that Paige knowingly and voluntarily entered into the plea agreement and its
sentence-appeal waiver given the extensive plea colloquy, Paige’s informed
questions about the plea agreement and waiver, and the district court’s responses to
those questions. The third factor also weighed against Paige because he moved to
vacate his plea only after the probation office issued its presentence investigation
report and two addenda, in an apparent attempt to avoid a potentially unfavorable
sentence. Fourth, the district court found that allowing Paige to withdraw his plea
would not prejudice the government. After denying the motion to withdraw, the
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district court sentenced Paige below the joint recommendation to 191 months’
imprisonment.
STANDARD OF REVIEW
We review the validity of a sentence-appeal waiver de novo. United States v.
Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). And we review the denial of a
motion to withdraw a guilty plea for abuse of discretion. United States v. Brehm,
442 F.3d 1291, 1298 (11th Cir. 2006).
DISCUSSION
We assume, without deciding, that the appeal waiver is invalid, so we don’t
reach that issue. As to the motion to withdraw his guilty plea, Paige argues that the
district court abused its discretion by denying the motion.
After the district court accepts a plea, but before sentencing, the defendant
may withdraw a guilty plea if he “can show a fair and just reason for requesting the
withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). A defendant has no absolute right to
withdraw a guilty plea prior to imposition of a sentence. Buckles, 843 F.2d at 471.
To determine whether a defendant has shown a “fair and just reason” for
withdrawing his guilty plea, the district court should “consider the totality of the
circumstances surrounding the plea.” Id. at 471–72. In doing so, the district court
should weigh the following four factors: “(1) whether close assistance of counsel
was available; (2) whether the plea was knowing and voluntary; (3) whether judicial
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resources would be conserved; and (4) whether the government would be prejudiced
if the defendant were allowed to withdraw his plea.” Id. at 472 (citation omitted).
If the defendant cannot satisfy the first two factors, we have said that the district
court need not give “considerable weight” or “particular attention” to the remaining
factors. United States v. Gonzalez-Mercado, 808 F.2d 796, 801 (11th Cir. 1987).
There is a strong presumption that statements made during a plea colloquy are true.
Id. at 800 n.8.
Here, the district court did not abuse its discretion under the Buckles factors.
First, as the district court found, Paige had the close assistance of counsel. Paige
said that he had discussed the plea with his attorney. Paige told the court that his
lawyer had discussed the government’s evidence with him, conducted discovery,
and explored defenses. Paige’s counsel responded to his questions and had even
filed a motion to suppress. Paige, multiple times, said that he was satisfied with his
lawyer. Still, the district court gave Paige additional time to consult with his attorney
before accepting the plea.
Second, the extensive plea colloquy made clear that Paige pleaded guilty
knowingly and voluntarily. The district court discussed the terms of the plea
agreement, the charges against Paige, the rights he would waive, and the potential
consequences of his plea. Paige repeatedly told the district court that he wanted to
plead guilty and that no one had forced him to enter the plea. The district court
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stressed that Paige was the only one who could decide whether to plead guilty or not.
Paige also informed the district court several times that he understood all of the terms
of the plea agreement. Where Paige did not understand something in the agreement,
he asked informed questions, including about the appeal waiver, the career offender
determination, and the counts he would be pleading to. The district court gave
thorough answers, provided examples of when the appeal waiver would apply and
how the career offender determination would be made, and made sure that it
addressed all of the points Paige raised.
Paige argues that his counsel inaccurately stated before the magistrate judge
that, despite the parties’ agreement to recommend a twenty-year sentence, he could
argue for a further downward variance at sentencing. But Paige does not argue that
his attorney’s representation affected his decision to plead guilty. See United States
v. Pease, 240 F.3d 938, 941 (11th Cir. 2001) (holding that to succeed on a motion to
withdraw a plea based on ineffective assistance of counsel, “the defendant must
show 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.” (quoting Hill v.
Lockhart, 474 U.S. 52, 59 (1985))). And any error was cured when the government
and district court explained that the joint recommendation of the twenty-year
sentence was a binding part of the agreement. See id. (affirming denial of a motion
to withdraw plea, despite the defendant’s argument that his counsel gave him
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erroneous advice concerning his sentence, because “it [was] clear from the transcript
of the plea hearing” that the magistrate judge warned the defendant that he could not
rely on counsel’s prediction of a sentence; that the crime had a different mandatory
minimum than what counsel had told the defendant; and that the court could deviate
from any sentence estimate given to the defendant). Paige was told by the district
court that he and the government would jointly recommend a twenty-year sentence,
and Paige said he understood and still wanted to plead guilty.
Because the first two Buckles factors weigh so heavily against Paige, we do
not give “particular attention” to the remaining factors. Gonzalez-Mercado, 808
F.2d at 801. The district court did not abuse its discretion in denying Paige’s request
to withdraw his plea, so we affirm.
AFFIRMED.
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