           Case: 12-15808   Date Filed: 06/14/2013   Page: 1 of 9


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-15808
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 5:12-cr-00125-KOB-MHH-1



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                 versus

TAVARES ANTWAN OLIVER,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                              (June 14, 2013)

Before BARKETT, HULL, and JORDAN, Circuit Judges.

PER CURIAM:
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        Tavares Antwan Oliver appeals his convictions after pleading guilty to two

counts of armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d), and

2(a) (“Counts 1 and 3”); two counts of brandishing a firearm during and in relation

to a crime of violence, in violation of § 924(c)(1)(A)(ii) (“Counts 2 and 4”); and

one count of bank robbery, in violation of 18 U.S.C. §§ 2113(a) and 2(a) (“Count

5”). After the district court accepted Oliver’s guilty plea, but before he was

sentenced, Oliver filed a motion to withdraw his guilty plea. He argued that his

guilty plea was not knowing and voluntary and that he did not have close

assistance of counsel because his attorney, Robert Tuten, did not tell him that he

faced a mandatory minimum sentence of 7 years’ imprisonment as to Count 2 and

25 years’ imprisonment as to Count 4, and that these sentences had to be served

consecutive to each other and to the sentences imposed for the three bank robbery

convictions. After conducting an evidentiary hearing, at which both Oliver and

Tuten testified, the district court denied Oliver’s motion to withdraw his guilty

plea.

        On appeal, Oliver argues that the district court abused its discretion in

denying his motion to withdraw his guilty plea. He also argues that Tuten was

ineffective for not advising him about the mandatory minimum sentences he would

face for his two convictions for brandishing a firearm.

                          I.     Motion to Withdraw Guilty Plea


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      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). We will reverse only if the district court’s ultimate conclusion is arbitrary

or unreasonable. Id. After the district court has accepted a defendant’s guilty plea,

and before sentencing, the defendant may withdraw a guilty plea if: (1) the district

court rejects the plea agreement, 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, 471-74 (11th Cir. 1988). If an appellant does not satisfy the first two prongs

of the Buckles analysis, we need not “give particular attention” to the others.

United States v. Gonzalez-Mercado, 808 F.2d 796, 801 (11th Cir. 1987). There is

a strong presumption that statements made during a plea colloquy are true. 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 a guilty




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plea are issues for the trial court to decide.” Brehm, 442 F.3d at 1298 (quotation

and brackets omitted).



      In this case the district court did not abuse its discretion in denying Oliver’s

motion to withdraw his guilty plea. As to the Buckles factor of close assistance of

counsel, Tuten testified at the plea withdrawal hearing that he repeatedly had

explained the 7-year and 25-year mandatory minimum consecutive sentences to

Oliver. Moreover, Oliver stated in his written plea agreement and during the

change-of-plea hearing, held pursuant to Federal Rule of Criminal Procedure 11,

that he had discussed the plea agreement and penalties he faced with Tuten. In

light of this evidence, the district court was entitled to find close assistance of

counsel. See Buckles, 843 F.3d at 472.

      As to the second Buckles factor, Oliver has also failed to show that his plea

was not knowing and voluntary. See Buckles, 843 F.3d at 472-74. In addition to

the testimony of Tuten, the plea agreement listed the maximum sentences that

Oliver would face, as well as the 7-year and 25-year consecutive mandatory

minimum sentences for the firearms offenses. Moreover, at the Rule 11 hearing

the district court told Oliver that he would face at least a 7-year sentence as to

Count 2, and at least a 25-year sentence as to Count 4, and that those sentences had

to be served consecutively. The district court asked Oliver if he had any questions


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about those penalties he faced, and he responded that he did not. The district court

further asked Oliver if anything had occurred during the plea hearing causing him

to change his mind about his plea, and Oliver responded no. There is a strong

presumption that Oliver’s statements made during the plea colloquy were true. See

Medlock, 12 F.3d at 187. Here, Oliver acknowledged that he knew the maximum

sentence he could face was life imprisonment, and he was told that any

dissatisfaction with an unexpectedly high sentence would not be grounds for later

setting aside his plea.

      Oliver has not shown that the third and fourth Buckles factors weigh in his

favor either. With respect to conserving judicial resources, permitting Oliver to

withdraw his plea would require the district court to hold a trial, which would

expend resources rather than conserve them. See Buckles, 843 F.2d at 474.

Moreover, the government would be prejudiced because of the passage of time and

the fact that Oliver’s co-defendants had already been granted substantial assistance

motions and would no longer have any incentive to testify against him. Id. In light

of the totality of the circumstances, the district court’s conclusion that Oliver did

not present a “fair and just reason” for withdrawing his guilty plea was not an

abuse of discretion.

                          II.   Ineffective Assistance of Counsel




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      We review ineffective assistance of counsel claims de novo. United States v.

Freixas, 332 F.3d 1314, 1316 (11th Cir. 2003). “[I]t is settled law in this circuit

that a claim of ineffective assistance of counsel cannot be considered on direct

appeal if the claims were not first raised before the district court and if there has

been no opportunity to develop a record of evidence relevant to the merits of the

claim.” United States v. Franklin, 694 F.3d 1, 8 (11th Cir. 2012) (quotation

omitted). “The preferred means for deciding a claim of ineffective assistance of

counsel is through a 28 U.S.C. § 2255 motion even if the record contains some

indication of deficiencies in counsel’s performance.” United States v. Patterson,

595 F.3d 1324, 1328 (11th Cir. 2010) (quotation omitted). However, if the record

is sufficiently developed, we will consider such a claim on direct appeal. Id.

      To sustain a claim for ineffective assistance of counsel, the defendant must

show that: (1) counsel’s performance was deficient; and (2) the deficient

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Counsel’s performance is deficient

only if it falls below an objective standard of reasonableness under prevailing

professional norms. Id. at 688, 104 S.Ct. at 2065. To establish prejudice in the

context of a guilty plea, the defendant must show that “there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct.


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366, 370, 88 L.Ed.2d 203 (1985). If the defendant makes an insufficient showing

on one prong, we need not address the other prong. Holladay v. Haley, 209 F.3d

1243, 1248 (11th Cir. 2000).



      While we usually entertain ineffective assistance of counsel claims on

collateral review, the record in the present case is sufficiently developed for our

review of Oliver’s claim on direct appeal because Oliver raised the issue of his

counsel’s ineffective assistance in the course of moving to withdraw his guilty plea

and the district court held an evidentiary hearing, at which both Oliver and Tuten

testified. At the evidentiary hearing, Oliver testified that Tuten never told him that

he faced a mandatory minimum of 32 years’ imprisonment, in addition to his

sentences for the bank robbery convictions. Oliver asserted, instead, that Tuten

told him he faced a 7-year minimum consecutive sentence on the brandishing a

firearm charges, and would only face the 25-year minimum if he were convicted of

that offense again. Tuten, on the other hand, testified that he explained to Oliver

several times that he would face at least a 7-year sentence as to Count 2, and at

least 25 years as to Count 4, and that these had to be served consecutive to the

sentences for the bank robbery counts. Under the circumstances, the record is

sufficiently developed to review Oliver’s claim on direct appeal. See Franklin,

694 F.3d at 8.


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      We need not reach the performance prong of the ineffective assistance of

counsel test because here, Oliver’s claim fails on the prejudice prong. See Haley,

209 F.3d at 1248 (noting that both prongs must be met to prevail on an ineffective

assistance of counsel claim). Even if Oliver’s allegations that Tuten did not

explain the minimum consecutive sentences were true, it is undisputed that the plea

agreement and the district court clearly advised Oliver about the 7-year and 25-

year mandatory minimum consecutive sentences before he pled guilty. Oliver

signed the plea agreement, which stated that as to Counts 2 and 4, he would face at

least 7 years’ imprisonment on the first conviction, and at least 25 years’

imprisonment on the second conviction, and that these sentences had to be served

consecutive to any other sentence imposed. At the plea colloquy, the district court

advised Oliver before accepting his guilty plea that he would face no less than 7

years’ imprisonment as to Count 2, no less than 25 years’ imprisonment as to

Count 4, and that these sentences had to be served consecutive to any other

sentence. Oliver acknowledged he had heard and understood the district court’s

explanation of the mandatory consecutive sentences. Indeed, he testified that he

was “jolted” when the district court said no less than 25 years as to Count 4, but

decided not to ask about it. Oliver also admitted that at the time he pled guilty, he

knew he could face a maximum of life imprisonment, and there was a possibility

that he could receive a sentence higher than he expected. Given all this, Oliver has


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not shown that but for Tuten’s allegedly deficient performance in explaining the

mandatory minimum sentences, there is a reasonable probability that he would not

have pled guilty, See Hill, 474 U.S. at 59, 106 S.Ct. at 370, and thus that Oliver has

not shown that Tuten rendered ineffective assistance of counsel.

      AFFIRMED.




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