United States v. Teyon Malik Herring

216 F. App'x 927
CourtCourt of Appeals for the Eleventh Circuit
DecidedFebruary 8, 2007
Docket05-17024
StatusUnpublished

This text of 216 F. App'x 927 (United States v. Teyon Malik Herring) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Teyon Malik Herring, 216 F. App'x 927 (11th Cir. 2007).

Opinion

PER CURIAM:

Appellant Teyon Malik Herring (“Herring”) appeals his guilty-plea conviction for possession with intent to distribute approximately twelve kilograms of cocaine hydrochloride, in violation of 21 U.S.C. § 841(a)(1), and his 121-month sentence. On appeal, Herring argues that the district court erred in denying his motion to withdraw his guilty plea. Herring also contends that the district court clearly erred in enhancing his sentence for obstruction of justice under U.S.S.G. § 3C1.1 because the record did not show that Herring testified untruthfully as to any material issue.

A. Denial of Herring’s Motion to Withdraw His Guilty Plea

Herring first argues that the district court erred in denying his motion to withdraw his guilty plea. Herring had agreed to plead guilty based upon the explanation of retained counsel, Clyde Taylor, that Herring should plead guilty as a delaying tactic to give counsel time to investigate and prepare for a suppression hearing and trial. Herring contends that his plea was thus unknowing and unintelligent because he did not receive reasonably effective assistance of counsel. He adds that judicial resources were not conserved because, if the district court denied his motion to suppress, he would have again pleaded guilty. Although the district court found prejudice to the government, the government had already prepared its case and was not relying upon any civilian witness who might lose memory or disappear. Herring concludes that Taylor, not Herring, was responsible for the delay because Taylor made misleading statements and promises, and Herring timely notified the district court of his desire to withdraw his plea.

We will disturb a district court’s decision to deny a defendant’s motion to withdraw *929 a guilty plea only when it constitutes an abuse of discretion. United States v. McCarty, 99 F.3d 383, 385 (11th Cir.1996). A decision is not an abuse of discretion unless it is arbitrary or unreasonable. United States v. Freixas, 332 F.3d 1314, 1318 (11th Cir.2003).

After the district court has accepted a defendant’s plea, but before sentencing, a defendant may withdraw his guilty plea if he “can show a fair and just reason for requesting the withdrawal.” Fed. R.Crim.P. 11(d)(2)(B). The provisions of this rule should be “liberally construed.” McCarty, 99 F.3d at 385. 1 However, “[tjhere is no absolute right to withdraw a guilty plea.” United States v. Medlock, 12 F.3d 185, 187 (11th Cir.1994). “The good faith, credibility and weight of a defendant’s assertions in support of a motion [to withdraw] are issues for the trial court to decide.” United States v. Buckles, 843 F.2d 469, 472 (11th Cir.1988).

In determining if the defendant has met his burden for withdrawal, “the district court may consider the totality of the circumstances surrounding the plea,” including the following factors: “(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. at 471-72 (citations omitted). Where a defendant has not satisfied the first two prongs of the analysis, we need not give considerable weight to the last two. See United States v. Gonzalez-Mercado, 808 F.2d 796, 801 (11th Cir.1987). “There is a strong presumption that the statements made during the [plea] colloquy are true.” Medlock, 12 F.3d at 187. Consequently, a defendant “bears a heavy burden to show his statements [under oath] were false.” United States v. Rogers, 848 F.2d 166, 168 (11th Cir.1988).

We conclude from the record that under the first prong of the analysis, Herring had the close assistance of counsel, who met with Herring at least six to eight times and explained the plea agreement to him. Regarding the second prong, Taylor testified that he advised Herring that the option of withdrawing a guilty plea was “no delaying tactic.” There is a strong presumption that Herring’s acknowledgment of his understanding and his statements as to his communications with the attorney are true, and we defer to the district court’s credibility determination in favor of Taylor.

In light of Taylor’s testimony, the plea colloquy, and the length of time between the entry of the plea and Herring’s motion to withdraw it, we conclude that the district court’s decision was not unreasonable. Consequently it was not an abuse of discretion, and we affirm Herring’s conviction.

B. U.S.S.G. § 3C1.1 Enhancement

Herring next argues that the district court clearly erred in enhancing his sentence for obstruction for justice under U.S.S.G. § 3C1.1 because the record did not show that Herring testified untruthfully as to any material issue. Herring claims that § 3C1.1 is not designed to punish a defendant for pleading not guilty or for moving to withdraw a guilty plea.

*930 The standards for reviewing the application of the Guidelines before the United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), decision apply after Booker as well. See United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir.2005). “A sentencing court under Booker still must consider the Guidelines, and, such consideration necessarily requires the sentencing court to calculate the Guidelines sentencing range in the same manner as before Booker.” Id. at 1178-79. We review a district court’s factual findings regarding the imposition of an enhancement for obstruction of justice for clear error and the district court’s application of the factual findings to the guidelines de novo. United States v. Massey, 443 F.3d 814, 818 (11th Cir.2006). ‘Where ... the district court must make a particularized assessment of the credibility or demeanor of the defendant, such as when applying the obstruction of justice enhancement for perjury, we accord special deference to the district court’s credibility determinations, and we review for clear error.” United States v. Banks,

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Related

United States v. McCarty
99 F.3d 383 (Eleventh Circuit, 1996)
United States v. Ram Kumar Singh
291 F.3d 756 (Eleventh Circuit, 2002)
United States v. Dolores Freixas
332 F.3d 1314 (Eleventh Circuit, 2003)
United States v. Banks
347 F.3d 1266 (Eleventh Circuit, 2003)
United States v. Henry J. Uscinski
369 F.3d 1243 (Eleventh Circuit, 2004)
United States v. Charles Crawford, Jr.
407 F.3d 1174 (Eleventh Circuit, 2005)
United States v. Marissa Giselle Massey
443 F.3d 814 (Eleventh Circuit, 2006)
United States v. Dunnigan
507 U.S. 87 (Supreme Court, 1993)
United States v. Booker
543 U.S. 220 (Supreme Court, 2004)
United States v. Orlando Jairo Gonzalez-Mercado
808 F.2d 796 (Eleventh Circuit, 1987)
United States v. James Buckles, A/K/A Jimmy Buckles
843 F.2d 469 (Eleventh Circuit, 1988)
United States v. Larry Jarome Rogers
848 F.2d 166 (Eleventh Circuit, 1988)

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Bluebook (online)
216 F. App'x 927, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-teyon-malik-herring-ca11-2007.