                                                                [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________                    FILED
                                                              U.S. COURT OF APPEALS
                                  No. 09-12975                  ELEVENTH CIRCUIT
                                                                 FEBRUARY 17, 2010
                              Non-Argument Calendar
                                                                     JOHN LEY
                            ________________________
                                                                      CLERK

                      D. C. Docket No. 06-00035-CR-1-MMP

UNITED STATES OF AMERICA,


                                                                   Plaintiff-Appellee,

                                        versus

BETTY JO RAINS,

                                                                Defendant-Appellant.


                            ________________________

                    Appeal from the United States District Court
                        for the Northern District of Florida
                          _________________________
                                (February 17, 2010)

Before CARNES, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

      Betty Jo Rains appeals her convictions and sentences for conspiracy to

distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. §
846, and possession of firearms in furtherance of a drug trafficking crime, in

violation of 18 U.S.C. § 924(c). Rains argues that she was entitled to a reduction

based on her substantial assistance under U.S.S.G. § 5K1.1 and, alternatively, that

she was entitled to withdraw her guilty plea. We affirm.

      Rains was charged with conspiracy to distribute and possess with intent to

distribute more than five kilograms of cocaine, and possession of firearms in

furtherance of a drug-trafficking crime. In April 2007, she agreed to plead guilty

to both counts pursuant to a written plea agreement.

      The plea agreement contained the following provisions:

      BETTY JO RAINS agrees to cooperate fully and truthfully with the
      United States Attorney . . . . Such cooperation shall include but is not
      limited to providing complete and truthful debriefings and testimony
      at grand jury, trial and as otherwise requested, involving any matter
      under investigation.

      The parties agree that the United States Attorney may revoke this
      agreement upon showing, by a preponderance of the evidence, any of
      the following:
      1. that defendant has refused to cooperate as required by this
      agreement; 2. that defendant’s statements or testimony has been
      untruthful or incomplete; 3. that defendant has failed to comply with
      any of the terms of this agreement; 4. that defendant has any criminal
      liability for homicide; or 5. that defendant has engaged in further
      criminal conduct after entering into this agreement.

      If this agreement is revoked:
      1. The plea of guilty entered by BETTY JO RAINS pursuant to this
      agreement and any judgment entered thereon shall remain in full force
      and effect and will not be the subject of legal challenge by the

                                          2
      defendant.
      ...
      4. The defendant, regardless of cooperation, and at the sole discretion
      of the United States Attorney, may be deemed not to have provided
      substantial assistance.

      If, in the sole discretion of the United States Attorney, BETTY JO
      RAINS is deemed to have provided substantial assistance in the
      investigation or prosecution of other persons who have committed
      offenses, if BETTY JO RAINS has otherwise complied with all terms
      of this agreement . . . the United States Attorney will file a substantial
      assistance motion . . . .

      At the plea hearing, the district court advised Rains of her rights and that the

court’s acceptance of her guilty plea would waive all of those rights. The court

informed Rains of the statutory minimum and maximum sentences. Rains

confirmed that she had discussed the sentencing guidelines with her lawyer, that

the signature on the plea agreement was hers, and that she read and fully

understood all of its terms and conditions. The court stated:

      Your agreement requires you to cooperate with the government. This
      cooperation may take several forms. . . . However, your agreement
      does require that whatever statement you make or whatever testimony
      you give, that it must at all times be absolutely truthful. . . . Now if
      you do not cooperate or if the statements that you make or the
      testimony that you give is not truthful, the government make revoke
      your plea agreement and . . . any guilty plea that you have entered
      would stand. You would not be permitted to withdraw from the guilty
      plea.

      When asked if she understood this aspect of her agreement, Rains confirmed

that she did. The court asked if Rains and her lawyer had discussed the plea

                                           3
agreement and all of its terms and conditions in detail, if anyone made any promise

to Rains to induce her guilty plea beyond those contained in the written plea

agreement, and if anyone had used threats, force, pressure or intimidation to induce

her plea. Rains responded that she had discussed and understood the terms of the

plea and had not been induced into entering it. The court asked Rains if she had

sufficient time to discuss her case fully with her lawyer, to which Rains responded

that she had. Rains further confirmed that she was satisfied with counsel. The

court accepted Rains’s guilty plea and released her pending sentencing.

      Shortly after her release, a pretrial services officer filed a petition requesting

that Rains be arrested and ordered to show cause why her bond should not be

revoked. The petition stated that law enforcement officers obtained evidence that

Rains’s boyfriend, incarcerated codefendant Bruce Adams, Jr., had telephoned

Rains from prison approximately 327 times from November 2006 through April

2007. Some of the calls were recorded and revealed that Adams and Rains had

discussed Rains providing false testimony at Adams’s trial. Additionally, law

enforcement officers discovered letters from Rains to Adams confirming the

testimony that she would provide.

      Based on this conduct, the government filed a motion to revoke Rains’s plea

agreement, asserting that Rains violated the terms of her plea agreement and



                                           4
supervised release by having contact with a codefendant and lying to investigators.

      At a hearing on the government’s motion, Rains testified that she understood

that the government could revoke the plea agreement, but that she did not

understand why she would not receive a benefit from the assistance she had given.

Counsel questioned whether he had explained the terms of the plea agreement to

Rains before she entered the plea. Rains stated that she understood most of the

agreement, but she had only been given about fifteen minutes to review it and she

had not understood everything the judge had explained at the change-of-plea

hearing. When questioned by counsel, Rains admitted that she had discussed the

agreement “page by page” with counsel prior to the plea hearing and that counsel

had adequately prepared her for the hearing. Rains further confirmed that she

understood, when she entered the plea, that she had to be truthful with the

government or the government could revoke the plea agreement and refuse to seek

a reduction in Rains’s sentence. The court then asked Rains if she wished to admit

or deny the allegations that she did not fully cooperate with the government. Rains

responded, “I guess I admit part of that but I have no choice.” The court revoked

Rains’s bond.

      The court later held a hearing on the revocation of the plea agreement, at

which Rains admitted violating the plea agreement and stated that she did not wish



                                          5
to oppose the motion to withdraw it. After the court reminded Rains that she

would not be able to withdraw her plea and that she likely would not get a

reduction for substantial assistance, and Rains indicated that she understood, the

court granted the motion to revoke the plea agreement.

      Over the next two years, Rains filed fourteen motions to continue sentencing

before moving to compel the government to file a substantial assistance motion.

Although she acknowledged that her plea agreement had been revoked, Rains

argued that she provided the government with immediate assistance and that the

government’s bad faith qualified as a constitutionally impermissible motive for

refusing to file a substantial assistance motion. Alternatively, she asserted that she

should be permitted to withdraw her plea due to ineffective assistance of counsel.

      At a hearing on Rains’s motions, Rains’s new counsel argued,

      the question left is whether or not - - whether the defendant is entitled
      to substantial assistance or a motion by the government under two
      different bodies and competing bodies of law, mainly the Wade case
      and Santabello. And if it is considered a contract then we’re - - under
      Santabello, we’re entitled to enforcement, I would submit. If it’s
      under Wade then we have to show bad faith. And frankly . . . I have
      no evidence to show bad faith. And even if I did, I think the court
      has, at the time of the motion to vacate the plea, probably entertained
      that evidence and ruled accordingly. But I still submit that the
      substantial assistance that Ms. Rains gave the government, mainly she
      cooperated immediately following her arrest. . . . And another separate
      point is that that order vacating the plea sets-aside merely the
      government’s obligations. And it doesn’t set-aside the defendant’s
      obligations. So if it were a true vacation of the plea we would be here

                                           6
      pleading anew. So I’m not so sure we want to do that anyway.

      The government responded that the issue of enforcement of the plea

agreement was moot since the plea agreement was revoked. The government

explained that it declined to file a motion for a reduction based on substantial

assistance because Rains made untruthful statements to investigators and at the

trial of one of her codefendants. After agreeing that there no longer was a plea

agreement, the court found that Rains had been advised that she would not be

permitted to withdraw her plea and that there was no evidence of bad faith or an

unconstitutional motive for the government’s decision not to file for a reduction.

Thus, the court denied the motion to compel or to withdraw the plea.

      Rains then presented evidence in support of her motion to set-aside her plea

based on ineffective assistance of counsel. Rains testified that she had provided

her previous attorney with cocaine and marijuana numerous times from the mid-

eighties through the early-nineties. Rains testified that previous counsel had not

discussed the plea agreement fully with her, and that he warned her that if she told

the judge that she did not understand the plea, the judge would not accept it. The

government asked Rains if she wanted to plead guilty as charged, and she

responded, “[i]n exchange for help, yes.” According to Rains, counsel forced her

to enter a plea by telling her she had no choice. She stated that counsel explained



                                           7
little about the plea agreement and she was afraid to ask about the terms in court

because counsel had coerced her. When asked if she had been truthful during the

plea colloquy, specifically when the court had inquired if she had been coerced to

enter the plea, Rains responded that she “did what her lawyer told her to do.” She

stated that she “didn’t even know that you could sign a plea and then have it taken

away from you.”

      In rebuttal, government presented the testimony of deputy sheriff Travis

Devinny, who was the lead investigator on the Rains case. Devinny stated that he

had interviewed Rains seven to eleven times and Rains never implicated counsel in

the drug transactions. Devinny further testified that Rains never told him that she

was coerced into making her plea, that Rains never said that she was not guilty of

the crimes, and that no time before the present hearing had anyone accused counsel

of receiving drugs from Rains.

      Defense counsel argued that “it would be a much cleaner record if we

withdrew the plea and possibly reentered it. And I tried to do it by way of this

motion to compel.” Counsel asserted that if Rains was not allowed to withdraw

her plea, the government should be held to its obligations under the plea agreement

because “part of her plea is left in place.”

      The government argued that the allegations regarding previous counsel’s



                                               8
drug use were so remote in time from the representation that there was no conflict

of interest and that Rains had not presented any credible evidence to show she had

been coerced into entering a plea. The court denied the motion to withdraw the

plea, finding that Rains had not shown ineffective assistance of counsel. The

district court sentenced Rains to 211 months’ imprisonment on the conspiracy

count and a consecutive 60-month term of imprisonment on the firearm count.

Rains now appeals, arguing that she was entitled to a reduction based on her

substantial assistance and, alternatively, that she should have been permitted to

withdraw her plea.

      A. Motion for Substantial Assistance

      We review de novo whether a district court may depart downward from the

applicable guideline range under § 5K1.1 in the absence of a governmental motion.

United States v. Forney, 9 F.3d 1492, 1498 (11th Cir. 1993). Under 18 U.S.C.

§ 3553(e) and U.S.S.G. § 5K1.1, “the condition limiting the court’s authority gives

the Government a power, not a duty, to file a motion when a defendant has

substantially assisted.” Wade v. United States, 504 U.S. 181, 185, 112 S.Ct. 1840,

1843, 118 L.Ed.2d 524 (1992). Because of this broad grant of prosecutorial

discretion, a district court has the authority to review a prosecutor’s refusal to file a

substantial assistance motion only if it finds that the refusal was based on an



                                            9
unconstitutional motive, such as a defendant’s race or religion. Wade, 504 U.S. at

185-86, 112 S.Ct. at 1843-44. A defendant’s generalized allegations of improper

motive will be insufficient to entitle the defendant to a remedy. Id. Additionally,

the defendant’s showing of actual assistance, although a necessary condition to

relief, is insufficient to provide relief absent a claim of unconstitutional motive.

Wade, 504 U.S. at 186, 187, 112 S.Ct. at 1844.

      Here, Rains did not allege an unconstitutional motive for the government’s

refusal to file a substantial assistance motion on her behalf. Thus, Rains’s

substantive argument that she was entitled to a reduction under § 5K1.1 fails.

      B. Motion to Withdraw the Guilty Plea

      We review the denial of a request to withdraw a guilty plea for abuse of

discretion. United States v. Freixas, 332 F.3d 1314, 1316 (11th Cir. 2003). There

is no abuse of discretion unless the denial is arbitrary or unreasonable. United

States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006) (citing United States v.

Weaver, 275 F.3d 1320, 1328, n. 8 (11th Cir. 2001)). A district court abuses its

discretion when it fails to apply proper legal standards or procedures, or makes

clearly erroneous findings of fact. United States v. Izquierdo, 448 F.3d 1269, 1276

(11th Cir. 2006).

      After a district court has accepted a plea and before sentencing, the court



                                           10
may, pursuant to Fed. R. Crim. P. 32(e), permit a guilty plea to be withdrawn if the

defendant is able to show a “fair and just reason” for the request. United States v.

Weaver, 275 F.3d 1320, 1327 (11th Cir. 2001). To determine whether a defendant

has met the burden of showing a fair and just reason, a district court can consider

the totality of the circumstances surrounding the plea. Brehm, 442 F.3d at 1298.

Specific factors for the district court to consider are: (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 is permitted to withdraw the

guilty plea. Id. Additionally, more substantial reasons for the withdrawal must be

shown if there has been a lengthy delay between the entry of the plea and the

motion to withdraw it. Id.

      Here, after considering all of the evidence, the district court concluded that

Rains was not entitled to withdraw her plea. Upon review, we cannot conclude

that this determination was arbitrary or unreasonable. The district court properly

applied the legal standards and procedures, and its factual findings were not

erroneous. Rains simply did not meet her burden of showing a fair and just reason

to withdraw her plea. Thus, the district court did not abuse its discretion by

denying the motion to withdraw the plea.



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AFFIRMED.




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