           Case: 16-10239   Date Filed: 02/08/2017   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-10239
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 0:15-cr-60045-WJZ-2



UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                 versus

DEZMAN DUNBAR ZAMA,

                                                       Defendant-Appellant.

                      ________________________

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

                            (February 8, 2017)

Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Dezman Zama appeals his criminal convictions for aggravated identity theft

and conspiracy to commit wire fraud and bank fraud. On appeal, Zama argues that

the district court abused its discretion in denying his motion to withdraw his guilty

plea because it misunderstood the scope of its discretion and applied an unduly

narrow standard. He contends that the district court incorrectly focused on the plea

colloquy and whether his plea was knowing and voluntary, rather than on whether

there was a fair and just reason supporting his request for withdrawal of his guilty

plea. Additionally, he asserts that the fair and just reason standard remains

unaffected by United States v. Hyde, 520 U.S. 670, 675-79 (1997), and that the

government misconstrued Hyde’s holding in its brief.

      We review the district court’s denial of a motion to withdraw a guilty plea

for an abuse of discretion. United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir.

2006). There is not an abuse of discretion unless the district court’s denial of a

motion to withdraw a guilty plea was “arbitrary or unreasonable.” Id. “A district

court abuses its discretion if it fails to apply the proper legal standard or to follow

proper procedures in making the determination, or makes findings of fact that are

clearly erroneous.” United States v. Izquierdo, 448 F.3d 1269, 1276 (11th Cir.

2006). The defendant-movant carries the burden on a motion to withdraw a guilty

plea. Id.




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      Prior to its acceptance by the court, the defendant may withdraw a guilty

plea “for any reason or no reason.” Fed. R. Crim. P. 11(d)(1). After the district

court has accepted a defendant’s guilty plea, but before sentencing, the defendant

may withdraw a guilty plea if: (1) the district court rejects a plea agreement that

contains a binding sentencing recommendation or an agreement to dismiss charges;

or (2) “the defendant can show a fair and just reason for requesting the

withdrawal.” Fed. R. Crim. P. 11(d)(2)(A)-(B).

      In determining whether a defendant has met his burden to show a “fair and

just reason” to withdraw a plea, 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 voluntary; (3) judicial

resources would be conserved; and (4) the government would be prejudiced if the

defendant were allowed to withdraw his plea. United States v. Buckles, 843 F.2d

469, 471-72 (11th Cir. 1988). The district court is in the best position to assess the

effect of withdrawal on judicial resources. Id. at 474. Further, “a district court

need not find prejudice to the government before it can deny a defendant’s motion

to withdraw.” Id. We have not given considerable weight to the third and fourth

factors when a defendant is found to have had the close assistance of counsel and

pled guilty knowingly and voluntarily. See United States v. Gonzalez-Mercado,

808 F.2d 796, 801 (11th Cir. 1987) (noting that we do not give particular attention


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to the third and fourth factors if the first two have been satisfied); see also United

States v. McCarty, 99 F.3d 383, 386 n.2 (11th Cir. 1996).

      Moreover, the “good faith, credibility and weight of a defendant’s assertions

in support of a motion to withdraw a guilty plea are issues for the trial court to

decide.” Brehm, 442 F.3d at 1298. Statements made under oath by a defendant

during a plea colloquy receive a strong presumption of truthfulness. United States

v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). Consequently, a defendant “bears a

heavy burden” to show that his statements under oath were false. United States v.

Rogers, 848 F.2d 166, 168 (11th Cir. 1988).

      In Hyde, the Supreme Court held that, where a defendant pleads guilty

pursuant to a plea agreement and the district court accepts the plea but defers

decision on whether to accept the plea agreement, the defendant may not withdraw

his plea unless he shows a “fair and just reason” for the plea withdrawal (rather

than for any or no reason). 520 U.S. at 671. The Supreme Court stated that to

allow a defendant to withdraw his plea in that circumstance without showing a

“fair and just reason” debases the judicial proceeding at which a defendant pleads

and the court accepts his plea. Id. at 676. The Supreme Court noted that allowing

the defendant to freely withdraw his guilty plea “would degrade the otherwise

serious act of pleading guilty into something akin to a move in a game of chess.”

Id.


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      Here, the district court did not abuse its discretion in denying Zama’s motion

to withdraw his guilty plea. As a preliminary matter, Zama is correct that Hyde did

not affect the “fair and just” standard, as Hyde’s holding was limited to providing

guidance on when a defendant needs to show a “fair and just” reason for

withdrawing his guilty plea. See id. at 671-75. However, Zama is incorrect that

the district court applied the wrong legal standard. Rather, the district court

considered Zama’s arguments regarding why he had a fair and just reason for

withdrawing his pleas and found he did not establish sufficient cause for

withdrawal because his reasons were belied by the plea colloquy. The district

court’s focus on the plea colloquy was not improper because it bore on the

appropriate inquiries of whether the plea was knowing and voluntary, whether he

had close assistance of counsel, and whether the totality of the circumstances

otherwise supported his reasons for seeking to withdraw his plea.

      The district court’s denial of Zama’s motion to withdraw his guilty plea was

not arbitrary and capricious because the record abundantly supports that Zama’s

plea was knowing and voluntary, and he received close assistance of counsel.

Zama’s testimony at the plea colloquy that he had not been threatened or pressured

into accepting his plea, and his attorney’s testimony (and Zama’s confirmation) at

the motion hearing that the answers Zama gave at the plea colloquy were his own,

establish that Zama’s plea was knowing and voluntary. That Zama received close


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assistance of counsel is shown by his attorney’s testimony at the motion hearing

that he discussed the specifics of the plea colloquy with Zama beforehand and had

explained the possibility of open or partial pleas, the intended loss amount, and the

impact of the appeal waiver as well as Zama’s testimony at the plea colloquy that

he and his attorney had fully discussed his case.

      Moreover, Zama has not otherwise shown that there is a fair and just reason

for withdrawing his guilty plea. Zama’s reasons for his withdrawal request were

belied by his testimony at the plea colloquy, and the district court was entitled to

rely on Zama’s plea colloquy answers in deciding on his motion to withdraw his

guilty plea. See Medlock, 12 F.3d at 187. Also, Zama was inconsistent about

whether he wanted to enter an open plea to all the charges or proceed to trial, and it

appears that Zama decided he wanted to withdraw his guilty plea only after a

codefendant was acquitted.

      Accordingly, we affirm the district court’s denial of Zama’s motion to

withdraw his guilty plea.

      AFFIRMED.




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