            Case: 19-12420   Date Filed: 03/09/2020   Page: 1 of 7



                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-12420
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:18-cr-00096-CG-B-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                 versus

RANDALL KEITH MIDKIFF,

                                                          Defendant-Appellant.

                       ________________________

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

                              (March 9, 2020)



Before GRANT, LUCK and BLACK, Circuit Judges.

PER CURIAM:
                 Case: 19-12420       Date Filed: 03/09/2020        Page: 2 of 7



       Randall Keith Midkiff appeals his conviction for enticement of a minor. He

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

guilty plea because his history of mental illness, testimony that he was confused

and did not understand conversations with his attorney, and insistence of his

innocence show that there was a fair and just reason to allow him to withdraw his

guilty plea. After review, 1 we affirm the district court.

       A district court may grant a motion to withdraw a guilty plea if the

defendant shows a fair and just reason. United States v. Brehm, 442 F.3d 1291,

1298 (11th Cir. 2006); see also Fed. R. Crim. P. 11(d)(2)(B) (providing a

defendant may withdraw a guilty plea after acceptance, but prior to imposition of

the sentence, if “the defendant can show a fair and just reason for requesting the

withdrawal”). The decision to allow withdrawal is left to the district court’s sound

discretion and will be reversed only if its decision was arbitrary or unreasonable.

United States v. Buckles, 843 F.2d 469, 471 (11th Cir. 1988). The defendant

carries the burden to show a fair and just reason for withdrawal of his plea. Id. To

determine whether a defendant has met this burden, 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



       1
          We review a district court’s denial of a motion to withdraw a guilty plea for abuse of
discretion. United States v. Buckles, 843 F.2d 469, 474 (11th Cir. 1988).
                                                2
               Case: 19-12420    Date Filed: 03/09/2020    Page: 3 of 7



voluntary”; (3) “judicial resources would be conserved”; and (4) “the government

would be prejudiced if the defendant were allowed to withdraw his plea.” Id. at

471-72.

      We will not find the district court abused its discretion if it conducted an

extensive plea colloquy that conforms with Rule 11 of the Federal Rules of

Criminal Procedure prior to accepting a guilty plea. Brehm, 442 F.3d at 1298.

When a district court accepts a guilty plea, it must ensure the core objectives of

Rule 11 are met: “(1) the guilty plea must be free from coercion; (2) the defendant

must understand the nature of the charges; and (3) the defendant must know and

understand the consequences of his guilty plea.” United States v. Lejarde-Rada,

319 F.3d 1288, 1289 (11th Cir. 2003) (quotations omitted). Accordingly, a

defendant who makes statements under oath bears a heavy burden to show his

guilty plea should be withdrawn. See United States v. Rogers, 848 F.2d 166, 169

(11th Cir. 1988).

      First, Midkiff does not argue on appeal that the court failed to conduct a

proper Rule 11 inquiry, so any argument on that issue is waived. See United States

v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998) (stating a defendant who

does not raise an issue in his brief on appeal abandons it). Moreover, the record

demonstrates the three core concerns of Rule 11 were met because, during his plea

colloquy, Midkiff confirmed that: (1) no promises had been made and no one


                                          3
               Case: 19-12420     Date Filed: 03/09/2020   Page: 4 of 7



attempted to force, pressure, or threaten him into pleading guilty; (2) he received

the indictment, reviewed it with his attorney, and understood the charge against

him; and (3) he understood the possible penalties of the charge against him and

acknowledged that, by pleading guilty, he was waiving his right to appeal and he

could not withdraw his plea if the sentence was more severe than he expected. See

Lejarde-Rada, 319 F.3d at 1289. In light of this record, Midkiff has not overcome

the strong presumption that the plea, conducted per Rule 11, was knowing and

voluntary. See United States v. Gonzalez-Mercado, 808 F.2d 796, 800 n.8 (11th

Cir. 1987) (stating there is a strong presumption a plea entered after proceedings

pursuant to Rule 11 is knowing and voluntary and that statements made during a

plea colloquy are true).

      Next, Midkiff’s argument his plea was not knowing and voluntary based on

his history of mental illness fails. Midkiff stated under oath at his plea colloquy

that no one had pressured or threatened him to plead guilty, and statements made

during a plea colloquy are generally presumed to be true. See id. At the hearing

on his motion to withdraw his guilty plea, Midkiff admitted to lying about his

mental illness in the past, and while the district court denied his motion to

withdraw his guilty plea, it ordered a mental evaluation to determine whether

Midkiff was seriously suffering from a mental health illness. The court noted

while Midkiff was arguing he suffered from mental illness, he had still not


                                          4
               Case: 19-12420     Date Filed: 03/09/2020   Page: 5 of 7



explained why, while under oath at his plea colloquy, he told the district court no

one had pressured him to enter a guilty plea and Midkiff’s own testimony appeared

to show his lawyers had explained it was to his benefit to plead guilty. Because

there was evidence Midkiff’s claim of mental illness was not credible, it was

reasonable, and not an abuse of discretion, for the district court to determine

Midkiff’s plea was knowing and voluntary. See United States v. Ramirez-Chilel,

289 F.3d 744, 749 (11th Cir. 2002) (stating we defer to the district court’s

credibility determination unless it is “so inconsistent or improbable on its face that

no reasonable factfinder could accept it” (quotations omitted)).

      Midkiff’s argument that he was not afforded close assistance of counsel also

fails because Midkiff’s statements at his plea colloquy, which are generally

presumed to be true, confirmed he was satisfied with his lawyer’s representation

and his lawyer discussed the case and plea agreement with him. See id. Further,

while Midkiff testified at the hearing on his motion to withdraw his plea that his

lawyer had pressured him to plead guilty and had spent minimal time reviewing the

plea agreement with him, it was for the district court to decide the credibility and

weight of Midkiff’s assertions in support of his motion, and its credibility findings

were reasonable. See Brehm, 442 F.3d at 1298 (explaining the district court

determines the credibility and weight to give to the defendant’s assertions in

support of his motion to withdraw a guilty plea).


                                          5
               Case: 19-12420     Date Filed: 03/09/2020    Page: 6 of 7



      Midkiff’s argument his fair and just reason for withdrawal of his guilty plea

outweighs the expenditure of further judicial resources is without merit. We held

that when both a plea colloquy conforming with Rule 11 and an evidentiary

hearing were conducted, enough judicial resources had been expended on the

defendant’s case—and Midkiff had the opportunities of briefing on the issue of

withdrawal, a mental evaluation, and a competency hearing in addition to his plea

colloquy and evidentiary hearing. See Buckles, 843 F.2d at 474 (recognizing when

a full Rule 11 plea colloquy and an evidentiary hearing were conducted on the

matter of a defendant’s guilty plea, enough judicial resources had been expended

on the case). Finally, Midkiff’s argument the Government would not be prejudiced

by the withdrawal of his guilty plea ignores the fact that, even if the Government

did have strong evidence against him, it would still have to spend time, money, and

effort to reassemble witnesses and evidence that were allowed to scatter after the

court’s acceptance of Midkiff’s guilty plea. See id. (stating the district court is not

required to find prejudice to the government before denying a defendant’s motion

to withdraw but may consider the time, money, and effort the government would

have to devote to reassemble the witnesses and that evidence may scatter after

acceptance of a guilty plea).




                                           6
               Case: 19-12420    Date Filed: 03/09/2020    Page: 7 of 7



      For the reasons above, Midkiff has not shown a fair and just reason for

withdrawal of his guilty plea. Accordingly, the district court did not abuse its

discretion in denying his motion.

      AFFIRMED.




                                          7
