Case: 19-12420 Date Filed: 03/09/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12420 Non-Argument Calendar ________________________
D.C. Docket No. 1:18-cr-00096-CG-B-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RANDALL KEITH MIDKIFF,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Alabama ________________________
(March 9, 2020)
Before GRANT, LUCK and BLACK, Circuit Judges.
PER CURIAM: Case: 19-12420 Date Filed: 03/09/2020 Page: 2 of 7
Randall Keith Midkiff appeals his conviction for enticement of a minor. He
asserts the district court abused its discretion in denying his motion to withdraw his
guilty plea because his history of mental illness, testimony that he was confused
and did not understand conversations with his attorney, and insistence of his
innocence show that there was a fair and just reason to allow him to withdraw his
guilty plea. After review, 1 we affirm the district court.
A district court may grant a motion to withdraw a guilty plea if the
defendant shows a fair and just reason. United States v. Brehm, 442 F.3d 1291,
1298 (11th Cir. 2006); see also Fed. R. Crim. P. 11(d)(2)(B) (providing a
defendant may withdraw a guilty plea after acceptance, but prior to imposition of
the sentence, if “the defendant can show a fair and just reason for requesting the
withdrawal”). The decision to allow withdrawal is left to the district court’s sound
discretion and will be reversed only if its decision was arbitrary or unreasonable.
United States v. Buckles, 843 F.2d 469, 471 (11th Cir. 1988). The defendant
carries the burden to show a fair and just reason for withdrawal of his plea. Id. To
determine whether a defendant has met this burden, 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
1 We review a district court’s denial of a motion to withdraw a guilty plea for abuse of discretion. United States v. Buckles, 843 F.2d 469, 474 (11th Cir. 1988). 2 Case: 19-12420 Date Filed: 03/09/2020 Page: 3 of 7
voluntary”; (3) “judicial resources would be conserved”; and (4) “the government
would be prejudiced if the defendant were allowed to withdraw his plea.” Id. at
471-72.
We will not find the district court abused its discretion if it conducted an
extensive plea colloquy that conforms with Rule 11 of the Federal Rules of
Criminal Procedure prior to accepting a guilty plea. Brehm, 442 F.3d at 1298.
When a district court accepts a guilty plea, it must ensure the core objectives of
Rule 11 are met: “(1) the guilty plea must be free from coercion; (2) the 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. Lejarde-Rada,
319 F.3d 1288, 1289 (11th Cir. 2003) (quotations omitted). Accordingly, a
defendant who makes statements under oath bears a heavy burden to show his
guilty plea should be withdrawn. See United States v. Rogers, 848 F.2d 166, 169
(11th Cir. 1988).
First, Midkiff does not argue on appeal that the court failed to conduct a
proper Rule 11 inquiry, so any argument on that issue is waived. See United States
v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998) (stating a defendant who
does not raise an issue in his brief on appeal abandons it). Moreover, the record
demonstrates the three core concerns of Rule 11 were met because, during his plea
colloquy, Midkiff confirmed that: (1) no promises had been made and no one
3 Case: 19-12420 Date Filed: 03/09/2020 Page: 4 of 7
attempted to force, pressure, or threaten him into pleading guilty; (2) he received
the indictment, reviewed it with his attorney, and understood the charge against
him; and (3) he understood the possible penalties of the charge against him and
acknowledged that, by pleading guilty, he was waiving his right to appeal and he
could not withdraw his plea if the sentence was more severe than he expected. See
Lejarde-Rada, 319 F.3d at 1289. In light of this record, Midkiff has not overcome
the strong presumption that the plea, conducted per Rule 11, was knowing and
voluntary. See United States v. Gonzalez-Mercado, 808 F.2d 796, 800 n.8 (11th
Cir. 1987) (stating there is a strong presumption a plea entered after proceedings
pursuant to Rule 11 is knowing and voluntary and that statements made during a
plea colloquy are true).
Next, Midkiff’s argument his plea was not knowing and voluntary based on
his history of mental illness fails. Midkiff stated under oath at his plea colloquy
that no one had pressured or threatened him to plead guilty, and statements made
during a plea colloquy are generally presumed to be true. See id. At the hearing
on his motion to withdraw his guilty plea, Midkiff admitted to lying about his
mental illness in the past, and while the district court denied his motion to
withdraw his guilty plea, it ordered a mental evaluation to determine whether
Midkiff was seriously suffering from a mental health illness. The court noted
while Midkiff was arguing he suffered from mental illness, he had still not
4 Case: 19-12420 Date Filed: 03/09/2020 Page: 5 of 7
explained why, while under oath at his plea colloquy, he told the district court no
one had pressured him to enter a guilty plea and Midkiff’s own testimony appeared
to show his lawyers had explained it was to his benefit to plead guilty. Because
there was evidence Midkiff’s claim of mental illness was not credible, it was
reasonable, and not an abuse of discretion, for the district court to determine
Midkiff’s plea was knowing and voluntary. See United States v. Ramirez-Chilel,
289 F.3d 744, 749 (11th Cir. 2002) (stating we defer to the district court’s
credibility determination unless it is “so inconsistent or improbable on its face that
no reasonable factfinder could accept it” (quotations omitted)).
Midkiff’s argument that he was not afforded close assistance of counsel also
fails because Midkiff’s statements at his plea colloquy, which are generally
presumed to be true, confirmed he was satisfied with his lawyer’s representation
and his lawyer discussed the case and plea agreement with him. See id. Further,
while Midkiff testified at the hearing on his motion to withdraw his plea that his
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Case: 19-12420 Date Filed: 03/09/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-12420 Non-Argument Calendar ________________________
D.C. Docket No. 1:18-cr-00096-CG-B-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RANDALL KEITH MIDKIFF,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Southern District of Alabama ________________________
(March 9, 2020)
Before GRANT, LUCK and BLACK, Circuit Judges.
PER CURIAM: Case: 19-12420 Date Filed: 03/09/2020 Page: 2 of 7
Randall Keith Midkiff appeals his conviction for enticement of a minor. He
asserts the district court abused its discretion in denying his motion to withdraw his
guilty plea because his history of mental illness, testimony that he was confused
and did not understand conversations with his attorney, and insistence of his
innocence show that there was a fair and just reason to allow him to withdraw his
guilty plea. After review, 1 we affirm the district court.
A district court may grant a motion to withdraw a guilty plea if the
defendant shows a fair and just reason. United States v. Brehm, 442 F.3d 1291,
1298 (11th Cir. 2006); see also Fed. R. Crim. P. 11(d)(2)(B) (providing a
defendant may withdraw a guilty plea after acceptance, but prior to imposition of
the sentence, if “the defendant can show a fair and just reason for requesting the
withdrawal”). The decision to allow withdrawal is left to the district court’s sound
discretion and will be reversed only if its decision was arbitrary or unreasonable.
United States v. Buckles, 843 F.2d 469, 471 (11th Cir. 1988). The defendant
carries the burden to show a fair and just reason for withdrawal of his plea. Id. To
determine whether a defendant has met this burden, 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
1 We review a district court’s denial of a motion to withdraw a guilty plea for abuse of discretion. United States v. Buckles, 843 F.2d 469, 474 (11th Cir. 1988). 2 Case: 19-12420 Date Filed: 03/09/2020 Page: 3 of 7
voluntary”; (3) “judicial resources would be conserved”; and (4) “the government
would be prejudiced if the defendant were allowed to withdraw his plea.” Id. at
471-72.
We will not find the district court abused its discretion if it conducted an
extensive plea colloquy that conforms with Rule 11 of the Federal Rules of
Criminal Procedure prior to accepting a guilty plea. Brehm, 442 F.3d at 1298.
When a district court accepts a guilty plea, it must ensure the core objectives of
Rule 11 are met: “(1) the guilty plea must be free from coercion; (2) the 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. Lejarde-Rada,
319 F.3d 1288, 1289 (11th Cir. 2003) (quotations omitted). Accordingly, a
defendant who makes statements under oath bears a heavy burden to show his
guilty plea should be withdrawn. See United States v. Rogers, 848 F.2d 166, 169
(11th Cir. 1988).
First, Midkiff does not argue on appeal that the court failed to conduct a
proper Rule 11 inquiry, so any argument on that issue is waived. See United States
v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998) (stating a defendant who
does not raise an issue in his brief on appeal abandons it). Moreover, the record
demonstrates the three core concerns of Rule 11 were met because, during his plea
colloquy, Midkiff confirmed that: (1) no promises had been made and no one
3 Case: 19-12420 Date Filed: 03/09/2020 Page: 4 of 7
attempted to force, pressure, or threaten him into pleading guilty; (2) he received
the indictment, reviewed it with his attorney, and understood the charge against
him; and (3) he understood the possible penalties of the charge against him and
acknowledged that, by pleading guilty, he was waiving his right to appeal and he
could not withdraw his plea if the sentence was more severe than he expected. See
Lejarde-Rada, 319 F.3d at 1289. In light of this record, Midkiff has not overcome
the strong presumption that the plea, conducted per Rule 11, was knowing and
voluntary. See United States v. Gonzalez-Mercado, 808 F.2d 796, 800 n.8 (11th
Cir. 1987) (stating there is a strong presumption a plea entered after proceedings
pursuant to Rule 11 is knowing and voluntary and that statements made during a
plea colloquy are true).
Next, Midkiff’s argument his plea was not knowing and voluntary based on
his history of mental illness fails. Midkiff stated under oath at his plea colloquy
that no one had pressured or threatened him to plead guilty, and statements made
during a plea colloquy are generally presumed to be true. See id. At the hearing
on his motion to withdraw his guilty plea, Midkiff admitted to lying about his
mental illness in the past, and while the district court denied his motion to
withdraw his guilty plea, it ordered a mental evaluation to determine whether
Midkiff was seriously suffering from a mental health illness. The court noted
while Midkiff was arguing he suffered from mental illness, he had still not
4 Case: 19-12420 Date Filed: 03/09/2020 Page: 5 of 7
explained why, while under oath at his plea colloquy, he told the district court no
one had pressured him to enter a guilty plea and Midkiff’s own testimony appeared
to show his lawyers had explained it was to his benefit to plead guilty. Because
there was evidence Midkiff’s claim of mental illness was not credible, it was
reasonable, and not an abuse of discretion, for the district court to determine
Midkiff’s plea was knowing and voluntary. See United States v. Ramirez-Chilel,
289 F.3d 744, 749 (11th Cir. 2002) (stating we defer to the district court’s
credibility determination unless it is “so inconsistent or improbable on its face that
no reasonable factfinder could accept it” (quotations omitted)).
Midkiff’s argument that he was not afforded close assistance of counsel also
fails because Midkiff’s statements at his plea colloquy, which are generally
presumed to be true, confirmed he was satisfied with his lawyer’s representation
and his lawyer discussed the case and plea agreement with him. See id. Further,
while Midkiff testified at the hearing on his motion to withdraw his plea that his
lawyer had pressured him to plead guilty and had spent minimal time reviewing the
plea agreement with him, it was for the district court to decide the credibility and
weight of Midkiff’s assertions in support of his motion, and its credibility findings
were reasonable. See Brehm, 442 F.3d at 1298 (explaining the district court
determines the credibility and weight to give to the defendant’s assertions in
support of his motion to withdraw a guilty plea).
5 Case: 19-12420 Date Filed: 03/09/2020 Page: 6 of 7
Midkiff’s argument his fair and just reason for withdrawal of his guilty plea
outweighs the expenditure of further judicial resources is without merit. We held
that when both a plea colloquy conforming with Rule 11 and an evidentiary
hearing were conducted, enough judicial resources had been expended on the
defendant’s case—and Midkiff had the opportunities of briefing on the issue of
withdrawal, a mental evaluation, and a competency hearing in addition to his plea
colloquy and evidentiary hearing. See Buckles, 843 F.2d at 474 (recognizing when
a full Rule 11 plea colloquy and an evidentiary hearing were conducted on the
matter of a defendant’s guilty plea, enough judicial resources had been expended
on the case). Finally, Midkiff’s argument the Government would not be prejudiced
by the withdrawal of his guilty plea ignores the fact that, even if the Government
did have strong evidence against him, it would still have to spend time, money, and
effort to reassemble witnesses and evidence that were allowed to scatter after the
court’s acceptance of Midkiff’s guilty plea. See id. (stating the district court is not
required to find prejudice to the government before denying a defendant’s motion
to withdraw but may consider the time, money, and effort the government would
have to devote to reassemble the witnesses and that evidence may scatter after
acceptance of a guilty plea).
6 Case: 19-12420 Date Filed: 03/09/2020 Page: 7 of 7
For the reasons above, Midkiff has not shown a fair and just reason for
withdrawal of his guilty plea. Accordingly, the district court did not abuse its
discretion in denying his motion.
AFFIRMED.