                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                 FILED
                                                        U.S. COURT OF APPEALS
                              No. 08-13518                ELEVENTH CIRCUIT
                                                              JUNE 16, 2009
                          Non-Argument Calendar
                                                           THOMAS K. KAHN
                        ________________________
                                                                CLERK

                    D. C. Docket No. 07-14039-CR-KMM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

ANNIEL GOMEZ,

                                                          Defendant-Appellant.


                        ________________________

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

                               (June 16, 2009)

Before DUBINA, Chief Judge, TJOFLAT and PRYOR, Circuit Judges.

PER CURIAM:

     Anniel Gomez appeals his convictions and sentence of 365 months of
imprisonment for conspiracy to maintain a residence for manufacturing and

distributing marijuana, 21 U.S.C. § 846, and conspiracy to manufacture and

distribute 100 or more marijuana plants, 21 U.S.C. § 846. Gomez argues that the

district court erred when it denied his motion to withdraw his guilty plea, the

district court erred in its findings of fact related to his sentence, and his sentence is

unreasonable. We affirm.

                                  I. BACKGROUND

      Gomez and several cohorts conspired to grow and harvest marijuana in six

houses located in St. Lucie County, Florida. During the conspiracy, Gomez and

his brother, Aznia Miranda, visited one grow house maintained by Gomez’s uncle,

Jesus Miranda, at 2631 Southwest Feather Terrace. Miranda demanded money

from Gomez and their discussion grew heated but eventually ended. Later that

evening, Miranda resumed his argument with Gomez in the kitchen, and their

disagreement escalated into a physical fight that ended when Gomez stabbed and

killed Miranda. Gomez attempted to eradicate any evidence that would link him to

the murder by setting fire to the house.

      Police learned of the conspiracy and raided the grow houses, where they

discovered over 500 marijuana plants in various stages of growth. A further

investigation revealed that Gomez and his cohorts harvested several crops of



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marijuana in the six houses. When police arrived the Southwest Feather Terrace

address, they discovered a partially burned house and a charred body that was later

identified as Jesus Miranda.

      Gomez was arrested and charged for conspiracy to maintain a residence to

manufacture or distribute marijuana, 21 U.S.C. § 846, and conspiracy to

manufacture or distribute 100 or more marijuana plants, id. Gomez waived

prosecution by indictment and pleaded guilty to both conspiracy charges. Gomez

avoided prosecution for the murder but agreed that the murder would potentially

affect the calculation of his sentence. The plea agreement provided that the district

court would sentence Gomez after the probation office conducted an investigation

and submitted a presentence investigation report to the court. The agreement

stated that the prosecutor “reserve[d] the right to inform the court and the probation

office of all facts pertinent to the sentencing process, including all relevant

information concerning the offenses committed, whether charged or not, as well as

concerning the defendant and the defendant’s background.”

      At the change of plea hearing, Gomez acknowledged that he had discussed

the plea agreement with counsel, he was satisfied with counsel’s representation,

and he was knowingly, intelligently, and voluntarily pleading guilty. The

government provided a factual basis for the plea and stated that “[t]he parties agree



                                            3
that there may be guidelines consequences for the death of Miranda. However, the

parties reserve all rights to argue the application of the guidelines at sentencing.”

Gomez “agree[d] to the factual basis as stated” and “stipulate[d] that” the

conspiracy involved “over 100 [marijuana] plants.” Gomez thereafter

acknowledged that the district court would impose a sentence after it received the

presentence report and considered any challenges to that report but the court could

impose a sentence “different from any estimate [Gomez]’s attorney may have

given . . . .” After a magistrate judge stated that he would recommend that the

district court accept Gomez’s guilty plea, the judge reminded Gomez that he would

be interviewed by a probation officer to prepare the presentence investigation

report, an attorney could be present for that interview, and Gomez could object to

the report and argue those objections at sentencing.

      The presentence investigation report provided a base offense level of 38 for

an offense involving a second degree murder. 18 U.S.C. § 1111; United States

Sentencing Guidelines § 2A1.2(a) (Nov. 2006). The report reduced the base level

by three points for acceptance of responsibility. Id. § 3E1.1. With a criminal

history of I, the report provided a sentencing range for Gomez between 168 and

210 months of imprisonment.

      The report contained details about the murder of Jesus Miranda. The report



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stated that after Miranda overpowered Gomez in the kitchen, Gomez grabbed a

large kitchen knife off the counter and stabbed Miranda five times in the chest and

back. Miranda fell to the floor and Gomez again stabbed Miranda in the chest.

After Jesus Miranda died, Gomez and his brother, Aznia Miranda, carried Jesus

Miranda’s body to a bathtub and attempted to clean the kitchen floor, but when

they were unsuccessful, Gomez used a tank of gas to start three separate fires

inside Jesus Miranda’s house. The fire damaged, but did not destroy, the house.

The report also stated that several of Gomez’s cohorts, including Lazro Valdes,

told federal officers that Gomez had admitted killing Jesus Miranda.

      The government objected to the presentence report on two grounds. First,

the government argued that Gomez’s statement was not sufficiently detailed to

warrant a reduction for acceptance of responsibility. Second, the government

argued that Gomez should receive a two point enhancement for obstruction of

justice because he had lied about his use of cocaine, threatened his brother after he

became a government witness, destroyed evidence, and provided false information

to law enforcement during its investigation of the drug conspiracy and murder.

      Gomez’s attorney, Jason Kriess, filed a motion to withdraw from the

representation and stated that he had developed a conflict with Gomez. The district

court denied the motion. Kriess filed a second motion to withdraw on the basis



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that Gomez had instructed him to cease work in the case and Kriess believed that

Gomez planned to file a complaint with the State Bar and file a complaint of

ineffective assistance of counsel. After a hearing, at which the government

explained the extensive work Kriess had performed on behalf of Gomez, the

district court denied Kriess’s second motion to withdraw.

      Gomez objected to the presentence report and responded to the objections of

the government. Gomez argued that Jesus Miranda’s murder should be treated as

voluntary manslaughter, which would reduce his base offense level to 29. 18

U.S.C. § 1112; U.S.S.G. § 2A1.3. Gomez also argued that he was entitled to a

reduction based on his statement accepting responsibility for the conspiracies, and

he objected to an enhancement for obstruction of justice.

      Gomez moved to withdraw his guilty plea. Gomez argued that his plea was

not made freely and voluntarily or knowingly and intelligently because he did not

understand the consequences of his guilty plea or the stipulations that accompanied

the plea. Kriess stated that he believed that Gomez would testify that he was

coerced by Kriess to plead guilty. The district court allowed Kriess to withdraw

and appointed Wilbur Chaney to represent Gomez.

      At the evidentiary hearing, Gomez refused to waive his attorney-client

privilege and testified that he agreed to “go to trial for the dead person but not for



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the marijuana. For the marijuana I plead guilty and that is clear. I want to be

sentenced for the marijuana and then we will fight the murder.” Gomez alleged

that Kriess had failed to tell him that he could be punished for the murder when he

pleaded guilty to the drug charges and, if he had known, he would not have

pleaded guilty. On cross-examination, Gomez acknowledged that he had agreed

with the factual basis provided by the government, which included information

about the death of his uncle, and he understood that “there were consequences, or

there might be consequences from the homicide and death” of his uncle. Gomez

argued that Kriess did not explain how the murder would affect his sentence. On

redirect examination, Gomez explained that he accepted the factual basis provided

by the government with the understanding that he was admitting guilt for the drugs

but not the murder.

      The magistrate judge who had accepted Gomez’s guilty plea found that

Gomez failed to establish a fair and just reason to withdraw the plea. The

magistrate judge stated that Gomez had the close assistance of Kriess; the plea

colloquy established that Gomez had knowingly and voluntarily pleaded guilty;

denying the motion to withdraw would avoid the need for a trial; and prejudice to

the government was not a factor in his decision. The magistrate judge

recommended that the district court deny Gomez’s motion to withdraw his guilty



                                          7
plea.

        Gomez objected to the recommendation of the magistrate judge. Gomez

argued that Kriess told him to sign the agreement and Kriess failed to explain that

Gomez would accept responsibility for Jesus Miranda’s murder. The district court

adopted the recommendation and denied Gomez’s motion to withdraw his plea.

        At the sentencing hearing, Gomez argued that the facts proffered by the

government established that he committed voluntary manslaughter. The

government offered two witnesses to support their argument that the crime was

second degree murder. Aznia Miranda testified that Gomez and Jesus Miranda

began to fistfight, but when Miranda began to choke Gomez, Gomez grabbed a

knife and stabbed Miranda twice in the back. When Miranda fell to the floor,

Gomez dropped the knife and crouched down next to Miranda. Miranda tried to

hit Gomez and asked “why are you doing this to me?[,]” to which Gomez

responded “you deserve it,” and stabbed Miranda in the chest. Later, Gomez and

Aznia Miranda fled to Mexico with Lazaro Valdes. Aznia Miranda overheard

Gomez tell Valdes that he murdered Jesus Miranda. Valdes testified and verified

that Gomez had admitted killing his uncle.

        Gomez testified and denied any involvement in the murder or the fire and

asserted that he learned about the crimes when he was questioned by the police.



                                          8
Gomez stated that he was not present when his uncle was killed and that his

brother, Aznia Miranda, had concocted the story to protect himself. Gomez denied

that he confessed committing the murder, but he admitted that he had told his

mother he had killed Jesus Miranda to protect Aznia Miranda.

      The district court found that it was “abundantly clear . . . by overwhelming

evidence” that Gomez had not accepted responsibility for the murder. The district

court ruled that Gomez had obstructed justice “by lying” and cited to evidence that

Gomez had failed to give a “complete truthful statement” about the murder; he had

“taken inconsistent positions as to his involvement”; and he had “repeatedly lied

on the stand over and over against in contradiction to the overwhelming evidence

to the contrary . . . .” The district court also ruled that Gomez’s misconduct was

second degree murder.

      The district court ruled that Gomez’s base offense level was 38 and

increased that level by two points for obstruction of justice, which provided a

guideline range between 292 and 365 months. After the district court considered

the presentence report, the guidelines, and the statutory factors, the court sentenced

Gomez to 365 months for conspiracy to manufacture and distribute 100 or more

marijuana plants and to a concurrent term of 240 months for conspiracy to

manufacture or distribute marijuana, followed by five years of supervised release.



                                           9
The court explained that it imposed a sentence at the high end of the guideline

range to “deter future criminal activity and reflect the seriousness of the crime.”

                          II. STANDARDS OF REVIEW

      We apply three standards of review in this case. We review for abuse of

discretion the denial of a motion to withdraw a guilty plea. United States v.

McCarty, 99 F.3d 383, 385 (11th Cir. 1996) (per curiam). “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) (per curiam). We review the

interpretation and application of the Guidelines de novo and related findings of fact

for clear error. United States v. Foley, 508 F.3d 627, 632 (11th Cir. 2007). We

review the reasonableness of a criminal sentence for an abuse of discretion. Gall v.

United States, 128 S. Ct. 586, 594, 596–97 (2007). “[T]he party who challenges

the sentence bears the burden of establishing that the sentence is unreasonable in

the light of both [the] record and the factors in section 3553(a).” United States v.

Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per curiam).

                                 III. DISCUSSION

      Gomez raises three challenges to his conviction and sentence. First, Gomez

contends that he was entitled to withdraw his guilty plea. Second, Gomez

challenges findings of fact regarding the calculation of his sentence. Third, Gomez



                                          10
challenges the reasonableness of his sentence. We address each argument in turn.

A. Gomez Failed to Provide a Fair and Just Reason to Withdraw His Guilty Plea.

         A defendant does not have an absolute right to withdraw his guilty plea.

United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). After the district

court accepts the guilty plea, but before it imposes a sentence, the defendant may

withdraw his plea if he “can show a fair and just reason for requesting the

withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). To determine whether a defendant has

established “a fair and just reason” to withdraw the plea, the district court may

consider the circumstances regarding the plea, which includes whether the

defendant had close assistance of counsel; whether the plea was knowing and

voluntary; whether denying the motion would conserve judicial resources; and

whether 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 did not abuse its discretion by denying Gomez’s motion to

withdraw his guilty plea. Gomez argued that Kriess failed to inform him that the

murder would be included in the calculation of his sentence, but Gomez admitted

during his plea colloquy that the murder carried “guideline consequences.” See

Medlock, 12 F.3d at 187. Gomez failed to provide the court with a just reason to



                                           11
withdraw his guilty plea.

        B. The District Court Did Not Clearly Err In Its Factual Findings.

      Gomez challenges three findings of fact related to his sentence. First,

Gomez contends that the facts supported a base offense level for voluntary

manslaughter rather than second degree murder. Second, Gomez argues that he did

not obstruct justice. Third, Gomez argues that he accepted responsibility. These

arguments fail.

      The record supports the factual findings of the district court. Testimony at

the sentencing hearing established that Gomez stabbed Jesus Miranda several times

and intended to kill him. Compare 18 U.S.C. § 1112(a) (delimiting voluntary

manslaughter to acts committed in the heat of passion), with id. § 1111(a)

(delimiting second degree murder to acts that are deliberate or committed with

indifference to the consequences). Gomez’s perjury about Miranda’s murder also

supported the enhancement for obstruction of justice and the denial of a reduction

for acceptance of responsibility. See United States v. Dunnigan, 507 U.S. 87, 94,

113 S. Ct. 1111, 1116 (1993); United States v. Lewis, 115 F.3d 1531, 1537 (11th

Cir. 1997) (per curiam).

                        C. Gomez’s Sentence Is Reasonable.

      The district court did not abuse its discretion by imposing a sentence at the



                                         12
high end of the guideline range. The district court correctly calculated the advisory

guideline range and reasonably concluded that a sentence of 365 months was

necessary to deter future crime and to reflect the seriousness of Gomez’s crimes.

See 18 U.S.C. § 3553(a); Gall, 128 S. Ct. at 597. Gomez’s sentence is reasonable.

                                IV. CONCLUSION

      The denial of Gomez’s motion to withdraw his guilty plea and Gomez’s

sentences are AFFIRMED.




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