            Case: 15-13725   Date Filed: 04/06/2016    Page: 1 of 6


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-13725
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 9:15-cr-80019-WPD-1



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

versus

IVAN VACLAVIK,

                                                Defendant - Appellant.

                       ________________________

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

                              (April 6, 2016)

Before TJOFLAT, JORDAN and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Ivan Vaclavik appeals his conviction and 27-month sentence for attempted

illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(1). Mr.

Vaclavik raises two issues on appeal. First, he argues that the district court abused

its discretion in denying his motion to withdraw his guilty plea without an

evidentiary hearing.    Second, he contends that the district court improperly

enhanced his sentence based on a prior conviction. After careful review, we

affirm.

                                         I

      Mr. Vaclavik lacked legal status in the United States, had been previously

removed, and attempted to reenter the United States illegally in violation of 8

U.S.C. § 1326(a) and (b)(1).       He entered into a plea agreement with the

government and indicated his desire to plead guilty. At a change-of-plea hearing,

Mr. Vaclavik was placed under oath, and the court explained the consequences of a

guilty plea to him. Mr. Vaclavik acknowledged that his attorney had discussed the

Sentencing Guidelines with him, and indicated that he would still like to plead

guilty. The court then advised Mr. Vaclavik that, with his criminal history, the

maximum penalty could amount to ten years in prison. Mr. Vaclavik stated that he

still wanted to plead guilty. The court explained the immigration consequences of

a guilty plea to Mr. Vaclavik, and he again stated that he still wanted to plead

guilty.


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      The pre-sentence investigation report stated that Mr. Vaclavik’s prior state

convictions included disorderly conduct and assault and battery, attempted

breaking and entering and possession of burglary tools, shoplifting, transporting

alcohol unlawfully, enticing a child under 16 and accosting a person of the

opposite sex, and illegal re-entry into the United States. Because he found that Mr.

Vaclavik had been previously deported after a felony conviction, the probation

officer applied a four-level increase in the base level sentence pursuant to U.S.S.G.

§ 2L1.2(b)(1)(D).    That felony conviction was Mr. Vaclavik’s Massachusetts

conviction for assault and battery. Mr. Vaclavik objected to this conviction being

classified as a felony, because it was a misdemeanor under Massachusetts law,

even though it was punishable by up to 2.5 years imprisonment.

                                           II

      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).   An abuse of discretion only occurs if the district court’s denial was

“arbitrary or unreasonable.” Id.

      A district court’s refusal to hold an evidentiary hearing is also reviewed for

abuse of discretion. Id. “It does not amount to abuse of discretion when a court

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




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      Prior to its acceptance by the court, a defendant may withdraw his 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 the district court rejects the plea agreement or “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 close assistance of counsel

was available, whether the plea was knowing and voluntary, whether judicial

resources would be conserved, and whether the government would be prejudiced if

the defendant were permitted to withdraw his plea. See United States v. Buckles,

843 F.2d 469, 471-72 (11thd Cir. 1988). Here the district court found that Mr.

Vaclavik 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).

      The district court did not abuse its discretion in denying Mr. Vaclavik’s

motion to withdraw the guilty plea.      As noted, Mr. Vaclavik had the close

assistance of counsel, and his guilty plea was knowing and voluntary. See Buckles,

843 F.2d at 471-72. Additionally, judicial resources would not be conserved if Mr.


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Vaclavik were permitted to withdraw his plea because the district court would have

to hold a trial, expending judicial resources rather than conserving them. See Id. at

474. Finally, the government would be prejudiced by having to reconvene and

expend time and resources to try the case. See Id. Based on the Buckles factors,

viewed in combination with a totality of the circumstances, the district court acted

within its discretion in denying Mr. Vaclavik’s motion to withdraw the guilty plea.

Additionally, the district court did not abuse its discretion in refusing to hold an

evidentiary hearing because it made extensive Rule 11 inquiries prior to accepting

Mr. Vaclavik’s guilty plea. See Brehm, 442 F.3d at 1298.

                                         III

      We review de novo the district court’s interpretation and application of the

Sentencing Guidelines. United States v. Gibson, 434 F.3d 1234, 1243 (11th Cir.

2006). Mr. Vaclavik asserts that the district court erred in enhancing his sentence

due to a prior felony conviction because his conviction for misdemeanor assault

and disorderly conduct constituted a misdemeanor in Massachusetts.                The

government responds that, although this conviction is a misdemeanor under

Massachusetts law, it was punishable by a term of imprisonment up to 2.5 years,

and therefore qualifies as a felony under § 2L1.2 of the Sentencing Guidelines.

      We have not ruled directly on this point, but other circuits have held that, for

the purposes of sentencing pursuant to a conviction related to illegal reentry into


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the United States, a state offense classified as a misdemeanor may constitute a

felony for federal sentencing purposes based on the maximum term of

imprisonment. See United States v. Savillon-Matute, 636 F.3d 119, 122 n.5 (4th

Cir. 2011) (describing the definition of felony under 8 U.S.C. § 1326(b)(1) as “an

offense punishable by a maximum term of imprisonment of more than one year”)

(internal citations omitted); United States v. Simo-Lopez, 471 F.3d 249, 252 (1st

Cir. 2006) (noting that the statutory maximum determines a crime’s status as a

felony under U.S.S.G. § 2L1.2(b)(1)(D)).

      Here, Mr. Vaclavik’s prior Massachusetts conviction for assault and battery

was properly classified as a felony under U.S.S.G. § 2L1.2(b)(1)(D) based on the

maximum term of imprisonment. Given that this conviction was properly deemed

a felony, the application of a four-level increase was appropriate.

                                              IV

      We affirm Mr. Vaclavik’s conviction and sentence.

      AFFIRMED.




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