          Case: 18-14200     Date Filed: 02/11/2020   Page: 1 of 11


                                                       [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 18-14200
                          Non-Argument Calendar
                        ________________________

               D.C. Docket No. 2:17-cr-00060-SPC-MRM-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                  versus

WILLIAM PIPER,

                                                          Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                       ________________________

                             (February 11, 2020)




Before EDMONDSON, HULL, and MARCUS, Circuit Judges.
              Case: 18-14200     Date Filed: 02/11/2020    Page: 2 of 11


PER CURIAM:



      William Piper appeals his conviction and 97-month sentence after pleading

guilty to possessing with intent to distribute 500 grams or more of

methamphetamine, 21 U.S.C. § 841(a)(1). No reversible error has been shown; we

affirm in part and dismiss the appeal in part.

      Briefly stated, a police detective at a shipping facility observed a package

consistent with possible narcotics concealment. The detective -- pursuant to a

search warrant -- opened the package and found almost a pound of

methamphetamine. An undercover officer then conducted a controlled delivery of

the package to “Jay Piper” at the residential address listed.

      Piper took delivery of and opened the package; officers then executed a

search warrant of the house. Officers arrested Piper after finding him in the garage

with the package and the methamphetamine. Officers also arrested several other

people who were present at the house, including Piper’s husband. Piper’s husband

was later charged with a state drug trafficking offense.

      Piper, meanwhile, was charged with possession with intent to distribute

methamphetamine, in violation of 21 U.S.C. § 841(a)(1). At the change-of-plea

hearing on 15 June 2017, Piper pleaded guilty pursuant to a written plea




                                           2
              Case: 18-14200     Date Filed: 02/11/2020    Page: 3 of 11


agreement. On 1 August 2017, Piper hired a new lawyer: the lawyer who was then

also representing Piper’s husband in the husband’s state criminal case.

      At a scheduled sentencing hearing on 7 May 2018, Piper notified the district

court that he wanted to withdraw his guilty plea. Piper said that his request was

prompted by the dismissal of his husband’s state criminal case, which was nolle

prossed on 28 April 2018. On 20 June 2018, Piper filed a written motion to

withdraw his plea, in which he asserted that there existed “numerous meritorious”

and “substantial defenses” that he now wished to assert.

      The district court denied Piper’s motion to withdraw his plea. The district

court then sentenced Piper to 97 months’ imprisonment: a sentence at the low end

of the calculated guidelines range of 97 to 121 months.



                                          I.



      Piper first challenges the district court’s denial of his motion to withdraw his

guilty plea. Piper contends that the district court abused its discretion in denying

his motion without first conducting an evidentiary hearing. Piper also says that the

district court relied improperly on a clearly erroneous fact.

      We review the denial of a motion to withdraw a guilty plea under an abuse-

of-discretion standard. United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir.


                                          3
              Case: 18-14200     Date Filed: 02/11/2020    Page: 4 of 11


2006). No abuse of discretion occurs “unless the denial is ‘arbitrary or

unreasonable.’” Id.

      A defendant -- like Piper -- who seeks to withdraw his guilty plea after the

court has accepted the plea but before sentencing must demonstrate “a fair and just

reason” for doing so. See Fed. R. Crim. P. 11(d)(2)(B). We construe liberally

whether a defendant’s pre-sentence motion to withdraw is supported by “a fair and

just reason.” United States v. Buckles, 843 F.2d 469, 471 (11th Cir. 1988). A

defendant, however, has “no absolute right to withdraw a guilty plea.” Id. Instead,

whether a defendant will be allowed to withdraw his plea is a decision “left to the

sound discretion of the trial court.” Id.

      In determining whether a defendant has satisfied his burden of showing a

“fair and just reason” for withdrawal, the district court must “consider the totality

of the circumstances surrounding the plea.” Id. at 471-72. In particular, the

district court considers “(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.” Brehm, 442 F.3d at 1298. 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).


                                            4
              Case: 18-14200     Date Filed: 02/11/2020   Page: 5 of 11


In addition, the timing of a motion to withdraw may be pertinent to understanding

a defendant’s motivation: “[a] swift change of heart is itself strong indication that

the plea was entered in haste and confusion.” Id.



      A. Evidentiary Hearing



      First, we reject Piper’s argument that the district court abused its discretion

in ruling on his motion to withdraw without first conducting an evidentiary

hearing. We have said that a district court’s refusal to hold an evidentiary hearing

on a motion to withdraw constitutes no “abuse of discretion when a court has

conducted extensive Rule 11 inquiries prior to accepting the guilty plea.” See

Brehm, 442 F.3d at 1298 (citing United States v. Stitzer, 785 F.2d 1506, 1514

(11th Cir. 1986)).

      Here, the district court conducted a thorough Rule 11 colloquy. Nor does

Piper challenge the district court’s determination that his guilty plea was entered

knowingly and voluntarily. In the district court, Piper never requested an

evidentiary hearing. Piper also failed to cite to or to attach documents in support

of his motion to withdraw that might have necessitated a hearing. On this record,

the district court abused no discretion in failing to sua sponte conduct an

evidentiary hearing before ruling on Piper’s motion.


                                           5
              Case: 18-14200     Date Filed: 02/11/2020    Page: 6 of 11




      B. Fact Finding



      About Piper’s second argument, we accept Piper’s assertion that the district

court misstated the timing between Piper’s motion to withdraw and the dismissal

of the state criminal case against Piper’s husband. The district court seems to have

believed mistakenly that the state criminal case against Piper’s husband was

dismissed in April 2017 instead of in April 2018. As a result, the district court said

erroneously that more than a year had passed between the dismissal of the state

criminal proceedings against Piper’s husband and Piper’s motion to withdraw his

plea (first raised orally in May 2018).

      We cannot conclude, however, that the challenged factual finding was

critical to the district court’s decision to deny Piper’s motion to withdraw his plea.

Before addressing the timing of Piper’s motion, the district court had already

determined that Piper’s plea was made knowingly and voluntarily, that Piper had

received the close aid of counsel, and that permitting Piper to withdraw his plea

over a year after Piper pleaded guilty (15 June 2017) would “consume greater

judicial resources and prejudice the Government.” The district court’s

determination that each of these four factors weighed against Piper constitutes

ample grounds to deny Piper’s motion to withdraw. See Brehm, 442 F.3d at 1298.


                                           6
              Case: 18-14200      Date Filed: 02/11/2020    Page: 7 of 11


We also note that Piper, on appeal, raises no challenge to these important

determinations.

      After having addressed the pertinent factors, the district court then went on

to address and to reject Piper’s asserted reason for seeking to withdraw his plea:

that “newly learned” and “unspecified defenses” used to exonerate Piper’s husband

would also apply in Piper’s case. The district court determined, instead, that

Piper’s motion was motivated by “buyer’s remorse.” About timing, the district

court said that Piper filed his motion to withdraw ten months after Piper retained

his husband’s lawyer and -- said mistakenly -- “more than a year after the State of

Florida dismissed the case against Piper’s husband.” The district court also then

rejected Piper’s argument on the merits. Unlike Piper’s husband’s case (which

Piper asserted was dismissed for lack of evidence), the district court said the

evidence of Piper’s guilt was “sufficient and strong.” Because Piper had presented

only “conclusory allegations and wishful conjecture on the existence of

exculpatory defenses,” the district court concluded that Piper had failed to

demonstrate a fair and just reason to withdraw his plea.

      In the light of this record and the language of the district court’s order, we

are persuaded that the sole challenged fact finding -- although erroneous -- played

no significant role in the district court’s ruling. The district court’s decision to

deny Piper’s motion to withdraw did not rely on a single date; the decision is


                                            7
                Case: 18-14200     Date Filed: 02/11/2020     Page: 8 of 11


supported by the complete record and by the pertinent factors. We see no abuse of

discretion. See Brehm, 442 F.3d at 1298; Baker, 432 F.3d at 1202 (no abuse of

discretion unless the district court “rests” its decision upon a clearly erroneous

fact).



                                             II.



         Piper also raises these challenges to his sentence: (1) the district court erred

in concluding that Piper was ineligible for safety-valve relief; (2) the district court

erred in increasing Piper’s offense level under U.S.S.G. § 2D1.1(b)(1) for

possession of a firearm; (3) Piper’s sentence is substantively unreasonable; and (4)

the prosecutor violated Piper’s due process rights by objecting (after Piper moved

to withdraw his plea) to a fact in the Presentence Investigation Report, which

resulted in an increase to Piper’s total offense level. The government responds that

Piper’s arguments are barred by the plea agreement’s sentence-appeal waiver.

         We review de novo the validity of a sentence-appeal waiver. United States

v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008). A sentence-appeal waiver is

enforceable if it is made knowingly and voluntarily. United States v. Bushert, 997

F.2d 1343, 1351 (11th Cir. 1993). To establish that the waiver was knowing and

voluntary, the government must show either that “(1) the district court specifically


                                             8
                Case: 18-14200   Date Filed: 02/11/2020    Page: 9 of 11


questioned the defendant concerning the sentence appeal waiver during the Rule 11

colloquy, or (2) it is manifestly clear from the record that the defendant otherwise

understood the full significance of the waiver.” Id.

       We conclude that Piper’s appellate arguments challenging his sentence are

barred by his sentence-appeal waiver. Piper’s written plea agreement provided

expressly that Piper waived “the right to appeal [his] sentence on any ground,

including the ground that the Court erred in determining the applicable guidelines

range . . ..”

       During the Rule 11 colloquy, the district court also said that -- pursuant to

the plea agreement -- Piper had agreed to waive his right to appeal his sentence

“except on very narrow grounds.” In particular, the district court explained that

Piper could appeal his sentence only on these grounds: (1) that the sentence

exceeds the applicable guidelines range as determined by the district court; (2) that

the sentence exceeds the statutory maximum penalty; or (3) that the sentence

violates the Eighth Amendment. Piper indicated that he understood the terms of

the sentence-appeal waiver.

       Because the record demonstrates that Piper waived knowingly and

voluntarily his right to appeal his sentence, we will enforce the plea agreement’s

sentence-appeal waiver. No exception to the waiver applies: Piper’s sentence is




                                           9
                Case: 18-14200   Date Filed: 02/11/2020   Page: 10 of 11


within the guidelines range as calculated by the district court, is below the statutory

maximum, and is consistent with the Eighth Amendment.

      On appeal, Piper acknowledges that his plea agreement contained a

sentence-appeal waiver. Piper also makes no argument challenging the

voluntariness of his guilty plea. Instead, Piper -- relying on non-binding authority

from other circuits -- urges us not to enforce the appeal waiver and to reach the

merits of his arguments to avoid a purported “miscarriage of justice.” We decline

this request.

      We stress that “[a]n appeal waiver includes the waiver of the right to appeal

difficult or debatable legal issues or even blatant error.” United States v. Grinard-

Henry, 399 F.3d 1294, 1296 (11th Cir. 2005). “We have consistently enforced

knowing and voluntary appeal waivers according to their terms.” United States v.

Bascomb, 451 F.3d 1292, 1294 (11th Cir. 2006). Furthermore, even if we assume

-- without deciding -- that this Court might recognize a miscarriage-of-justice

exception in some case, nothing in this case presents the kind of exceptional

circumstance that might warrant consideration of Piper’s appellate arguments

despite a valid appeal waiver. Cf. United States v. Howle, 166 F.3d 1166, 1169

n.5 (11th Cir. 1999) (“In extreme circumstances -- for instance, if the district court

had sentenced [a defendant] to a public flogging -- due process may require that an

appeal be heard despite a previous waiver.”); Bushert, 997 F.2d at 1350 n.18


                                          10
                Case: 18-14200   Date Filed: 02/11/2020   Page: 11 of 11


(noting that “there are certain fundamental and immutable legal landmarks within

which the district court must operate regardless of the existence of sentence appeal

waivers,” including statutory maximums and prohibitions on basing a sentence on

a constitutionally impermissible factor such as race).

      Accordingly, we dismiss Piper’s appeal to the extent he seeks to challenge

his sentence.

      AFFIRMED IN PART; DISMISSED IN PART.




                                          11
