Case: 18-10479 Date Filed: 08/30/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-10479 Non-Argument Calendar ________________________
D.C. Docket No. 1:13-cr-00040-TWT-GGB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO KILPATRICK HEARD,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(August 30, 2018)
Before TJOFLAT, WILLIAM PRYOR and NEWSOM, Circuit Judges.
PER CURIAM: Case: 18-10479 Date Filed: 08/30/2018 Page: 2 of 7
This appeal is the second time that Antonio Heard has challenged his
sentence and convictions for possessing a firearm as a felon, 18 U.S.C.
§§ 922(g)(1), 924(e)(1), and for possessing stolen firearms, id. §§ 922(j),
924(a)(2). During the first appeal, both the government and Heard challenged the
sentence imposed following his pleas of guilty to both offenses. The government
won that battle. In this second appeal, Heard challenges the later denial of his
motion to withdraw his plea. Heard argues that his pleas of guilty were not entered
knowingly because he thought it was a “remote” possibility that he would receive a
mandatory minimum sentence under the Armed Career Criminal Act. We affirm.
Before trial, Heard sought and obtained a limited presentence investigation
report to aid him in deciding whether to change his pleas from not guilty to guilty.
Heard had four prior convictions for burglary in Georgia courts, but the limited
presentence report did not classify his offenses as violent felonies under the Act.
During a status hearing, defense counsel argued that Heard was not an armed
career criminal, but the government responded that Heard’s convictions counted as
predicate offenses under the Act and subjected him to an enhanced sentence. The
district judge declined to rule on the issue because the case was being reassigned,
advised the parties to file motions requesting the new judge to rule on the
application of the Act, and told Heard that he might face a mandatory sentence of
15 years if he entered pleas of guilty or lost at trial.
2 Case: 18-10479 Date Filed: 08/30/2018 Page: 3 of 7
After the district court denied the parties’ joint motion for an advisory ruling
on Heard’s sentence, Heard entered pleas of guilty without the benefit of a plea
agreement. During the plea colloquy, the prosecutor stated that Heard faced a
mandatory minimum sentence of 15 years under the Act, and defense counsel
acknowledged that the district court “may decide at [sentencing] that it is 15 to life
if [it were to] decide that the [Act] does apply to Mr. Heard.” Defense counsel also
stated, “We are aware that that’s a possibility, that [the district judge] will make
that decision,” but “he and I do believe that after you hear the arguments that the
Court will decide . . . that Mr. Heard is not eligible for the enhanced sentence
under [the Act], in which case” his sentencing range would “be zero to ten years,
ten years being the maximum at that point.” Heard acknowledged that the district
court would decide whether to classify his prior convictions as violent felonies and
that he could face a mandatory minimum sentence of 15 years of imprisonment.
Heard also acknowledged “that if the sentence is more severe than [he] expected
[he] will still be bound by [his] plea of guilty and will have no right to withdraw
it.” The district court found that Heard offered to plead guilty “voluntarily . . . with
full knowledge of the charges against him and the consequences of his plea[s]” and
accepted his pleas of guilty.
The district court refused to classify Heard’s prior convictions as violent
felonies on the ground that generic burglary required an element of breaking and
3 Case: 18-10479 Date Filed: 08/30/2018 Page: 4 of 7
entering. The district court calculated Heard’s sentencing range as 77 to 96 months
of imprisonment and sentenced him to two concurrent sentences of 84 months of
imprisonment. Heard and the government appealed.
We vacated Heard’s sentence based on our intervening decision in United
States v. Gundy, 842 F.3d 1156, 1169 (11th Cir. 2016), in which we held that
convictions under the Georgia burglary statute may qualify as predicate offenses
under the Act because the state statute is divisible and includes the elements of
generic burglary. United States v. Heard, 677 F. App’x 636, 636 (11th Cir.), cert.
denied, 137 S. Ct. 2109 (2017). We remanded Heard’s case for the district court
“to determine whether the record establishes that Heard was convicted of generic
burglary.” Id. at 636–37.
On remand, Heard moved to withdraw his pleas of guilty, but the district
court denied the motion. The district court ruled that no fair and just reason existed
to allow Heard to withdraw his plea. The district court found that Heard knew of
the possibility that his prior convictions would count as predicate offenses and that
the government would be unduly prejudiced by a loss of evidence and witnesses
because five years had elapsed since Heard’s indictment. The district court ruled
that Heard’s prior convictions were violent felonies, recalculated Heard’s
sentencing range, and sentenced him to 180 months of imprisonment for
possessing a firearm as a felon, 18 U.S.C. §§ 922(g)(1), 924(e)(1), and to a
4 Case: 18-10479 Date Filed: 08/30/2018 Page: 5 of 7
concurrent sentence of 120 months for possessing stolen firearms, id. §§ 922(j),
924(a)(2).
The district court did not abuse its discretion by denying Heard’s motion to
withdraw his guilty pleas. In United States v. Buckles, 843 F.2d 469 (11th
Cir.1988), we identified four factors for the district court to consider in evaluating
such a request: whether the defendant had “close assistance” of counsel; whether
the plea was knowing and voluntary; whether judicial resources would be
conserved; and whether the government would be prejudiced if the defendant were
allowed to withdraw his plea. Id. at 472. Heard admits that he “voluntarily and
knowingly accepted the plea[s] of guilty” and the record reveals that he consulted
with his counsel at length before entering his pleas of guilty. Heard does not
challenge the finding that allowing him to withdraw his plea would prejudice the
government, so we deem any argument he could have made in this regard
abandoned. See United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir.
1998). Heard provided no fair and just reason to allow him to withdraw his pleas.
See Fed. R. Crim. P. 11(d)(2)(B).
Heard argues that he could not “make a truly ‘knowing’ decision on his
plea[s] . . . [w]ithout the Gundy decision as guidance,” but we disagree. For a
guilty plea to be entered into knowingly and voluntarily, it must satisfy three “core
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Case: 18-10479 Date Filed: 08/30/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-10479 Non-Argument Calendar ________________________
D.C. Docket No. 1:13-cr-00040-TWT-GGB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO KILPATRICK HEARD,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(August 30, 2018)
Before TJOFLAT, WILLIAM PRYOR and NEWSOM, Circuit Judges.
PER CURIAM: Case: 18-10479 Date Filed: 08/30/2018 Page: 2 of 7
This appeal is the second time that Antonio Heard has challenged his
sentence and convictions for possessing a firearm as a felon, 18 U.S.C.
§§ 922(g)(1), 924(e)(1), and for possessing stolen firearms, id. §§ 922(j),
924(a)(2). During the first appeal, both the government and Heard challenged the
sentence imposed following his pleas of guilty to both offenses. The government
won that battle. In this second appeal, Heard challenges the later denial of his
motion to withdraw his plea. Heard argues that his pleas of guilty were not entered
knowingly because he thought it was a “remote” possibility that he would receive a
mandatory minimum sentence under the Armed Career Criminal Act. We affirm.
Before trial, Heard sought and obtained a limited presentence investigation
report to aid him in deciding whether to change his pleas from not guilty to guilty.
Heard had four prior convictions for burglary in Georgia courts, but the limited
presentence report did not classify his offenses as violent felonies under the Act.
During a status hearing, defense counsel argued that Heard was not an armed
career criminal, but the government responded that Heard’s convictions counted as
predicate offenses under the Act and subjected him to an enhanced sentence. The
district judge declined to rule on the issue because the case was being reassigned,
advised the parties to file motions requesting the new judge to rule on the
application of the Act, and told Heard that he might face a mandatory sentence of
15 years if he entered pleas of guilty or lost at trial.
2 Case: 18-10479 Date Filed: 08/30/2018 Page: 3 of 7
After the district court denied the parties’ joint motion for an advisory ruling
on Heard’s sentence, Heard entered pleas of guilty without the benefit of a plea
agreement. During the plea colloquy, the prosecutor stated that Heard faced a
mandatory minimum sentence of 15 years under the Act, and defense counsel
acknowledged that the district court “may decide at [sentencing] that it is 15 to life
if [it were to] decide that the [Act] does apply to Mr. Heard.” Defense counsel also
stated, “We are aware that that’s a possibility, that [the district judge] will make
that decision,” but “he and I do believe that after you hear the arguments that the
Court will decide . . . that Mr. Heard is not eligible for the enhanced sentence
under [the Act], in which case” his sentencing range would “be zero to ten years,
ten years being the maximum at that point.” Heard acknowledged that the district
court would decide whether to classify his prior convictions as violent felonies and
that he could face a mandatory minimum sentence of 15 years of imprisonment.
Heard also acknowledged “that if the sentence is more severe than [he] expected
[he] will still be bound by [his] plea of guilty and will have no right to withdraw
it.” The district court found that Heard offered to plead guilty “voluntarily . . . with
full knowledge of the charges against him and the consequences of his plea[s]” and
accepted his pleas of guilty.
The district court refused to classify Heard’s prior convictions as violent
felonies on the ground that generic burglary required an element of breaking and
3 Case: 18-10479 Date Filed: 08/30/2018 Page: 4 of 7
entering. The district court calculated Heard’s sentencing range as 77 to 96 months
of imprisonment and sentenced him to two concurrent sentences of 84 months of
imprisonment. Heard and the government appealed.
We vacated Heard’s sentence based on our intervening decision in United
States v. Gundy, 842 F.3d 1156, 1169 (11th Cir. 2016), in which we held that
convictions under the Georgia burglary statute may qualify as predicate offenses
under the Act because the state statute is divisible and includes the elements of
generic burglary. United States v. Heard, 677 F. App’x 636, 636 (11th Cir.), cert.
denied, 137 S. Ct. 2109 (2017). We remanded Heard’s case for the district court
“to determine whether the record establishes that Heard was convicted of generic
burglary.” Id. at 636–37.
On remand, Heard moved to withdraw his pleas of guilty, but the district
court denied the motion. The district court ruled that no fair and just reason existed
to allow Heard to withdraw his plea. The district court found that Heard knew of
the possibility that his prior convictions would count as predicate offenses and that
the government would be unduly prejudiced by a loss of evidence and witnesses
because five years had elapsed since Heard’s indictment. The district court ruled
that Heard’s prior convictions were violent felonies, recalculated Heard’s
sentencing range, and sentenced him to 180 months of imprisonment for
possessing a firearm as a felon, 18 U.S.C. §§ 922(g)(1), 924(e)(1), and to a
4 Case: 18-10479 Date Filed: 08/30/2018 Page: 5 of 7
concurrent sentence of 120 months for possessing stolen firearms, id. §§ 922(j),
924(a)(2).
The district court did not abuse its discretion by denying Heard’s motion to
withdraw his guilty pleas. In United States v. Buckles, 843 F.2d 469 (11th
Cir.1988), we identified four factors for the district court to consider in evaluating
such a request: whether the defendant had “close assistance” of counsel; whether
the plea was knowing and voluntary; whether judicial resources would be
conserved; and whether the government would be prejudiced if the defendant were
allowed to withdraw his plea. Id. at 472. Heard admits that he “voluntarily and
knowingly accepted the plea[s] of guilty” and the record reveals that he consulted
with his counsel at length before entering his pleas of guilty. Heard does not
challenge the finding that allowing him to withdraw his plea would prejudice the
government, so we deem any argument he could have made in this regard
abandoned. See United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir.
1998). Heard provided no fair and just reason to allow him to withdraw his pleas.
See Fed. R. Crim. P. 11(d)(2)(B).
Heard argues that he could not “make a truly ‘knowing’ decision on his
plea[s] . . . [w]ithout the Gundy decision as guidance,” but we disagree. For a
guilty plea to be entered into knowingly and voluntarily, it must satisfy three “core
concerns,” which are that “(1) the guilty plea must be free from coercion; (2) the
5 Case: 18-10479 Date Filed: 08/30/2018 Page: 6 of 7
defendant must understand the nature of the charges; and (3) the defendant must
know and understand the consequences of his guilty plea.” United States v.
Symington, 781 F.3d 1308, 1314 (11th Cir. 2015) (quoting United States v.
Hernandez–Fraire, 208 F.3d 945, 949 (11th Cir. 2000)). Heard does not dispute
that his plea was made voluntarily and that he understood the crimes that he
admitted committing. And the record establishes that Heard knew, without a doubt,
that he could be sentenced as an armed career criminal if he pleaded guilty. The
district court advised Heard of the possibility that it might count his prior
convictions as predicate offenses under the Act and enhance his sentence, both
when Heard was still debating whether to plead guilty and later during his change
of plea hearing. And Heard acknowledged during his plea colloquy that he knew
the district court would decide whether to enhance his sentence and that he could
not withdraw his plea if he received a greater sentence than he anticipated. See
United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994) (“There is a strong
presumption that the statements made during the colloquy are true.”); United States
v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988) (“when a defendant makes
statements under oath at a plea colloquy, he bears a heavy burden to show his
statements were false”). Tellingly, Heard admits that “he clearly recognized
[before entering his pleas] that a higher sentence was a possibility . . . .”
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Timing is everything, and in this case, the timing of Heard’s motion
establishes his motivation for seeking to withdraw his plea. Heard’s motion
followed on the heels of our decision in his first appeal to vacate his sentence and
remand for resentencing. Heard acted in anticipation that he would receive a more
severe sentence. See United States v. Gonzalez-Mercado, 808 F.2d 796, 801 (11th
Cir. 1987). “To have granted [Heard’s] motion under these circumstances would
have been to permit [him] to use the guilty plea as a means of testing the weight of
the potential sentence—a primary ground for denying plea changes.” Id. (quoting
United States v. Simmons, 497 F.2d 177, 179 (5th Cir.1974)). We cannot say that
the district court abused its discretion by refusing to allow Heard to withdraw his
plea.
We AFFIRM Heard’s convictions and sentence.