                    Case: 11-15837         Date Filed: 08/07/2012   Page: 1 of 9

                                                                        [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-15837
                                        Non-Argument Calendar
                                      ________________________

                           D.C. Docket No. 1:08-cr-00031-SPM-GRJ-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellee,

                                                 versus

SETH JERCHOWER,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

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

                                           (August 7, 2012)

Before BARKETT, PRYOR and FAY, Circuit Judges.

PER CURIAM:

         Seth Jerchower appeals his conviction for using interstate commerce to
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induce a minor to engage in sexual activity, in violation of 18 U.S.C. § 2422(b).

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

to hold an evidentiary hearing on his motion to withdraw his guilty plea and in

denying that motion. The government argues that the district court did not have

jurisdiction to consider Jerchower’s motion. For the reasons set forth below, we

affirm Jerchower’s conviction and sentence.

                                          I.

      Jerchower was indicted for, and pleaded guilty to, using interstate

commerce to induce a minor to engage in sexual activity. At the plea colloquy,

Jerchower testified that he understood that his guilty plea would be final, that he

would not be able to withdraw his plea “except in the most unusual

circumstances,” and that he would not be able to withdraw his guilty plea because

he received a longer sentence than he had expected. Furthermore, he understood

that his sentence would be at least ten years’ imprisonment, but not more than life

imprisonment. The magistrate judge explained the sentencing process, including

the fact that the district court could impose a sentence that was either shorter or

longer than the advisory guideline range. Jerchower testified that he understood

the sentencing process and that his sentence might be different from any estimate

that his attorney, Robert Harper, Jr., or the government had provided. Jerchower

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further testified that no one had made him any promises as to the sentence he

would receive. Jerchower pleaded guilty. The magistrate recommended that the

district court accept Jerchower’s guilty plea, and the court did so.

      Jerchower was originally sentenced to 327 months’ imprisonment. After

filing a notice of appeal, Harper filed a motion to withdraw as Jerchower’s counsel

of record. On appeal, we agreed with Jerchower’s argument that the district court

had erroneously applied a two-level sentencing enhancement. United States v.

Jerchower, 631 F.3d 1181, 1187 (11th Cir. 1187). We vacated Jerchower’s

sentence and remanded the case to the district court for resentencing. Id.

      On remand, the district court granted Harper’s motion to withdraw and

appointed the Federal Public Defender to represent Jerchower. Prior to his

resentencing hearing, Jerchower filed a motion to withdraw his guilty plea, and he

requested a hearing on the motion. Jerchower argued that he had not received

close assistance of counsel prior to pleading guilty, which rendered his guilty plea

not knowing and voluntary. Specifically, Jerchower asserted that Harper had led

him to believe that, under the plea agreement, his sentence would be 120 months’

imprisonment, and he pleaded guilty on the basis of that promise. The government

responded that Jerchower had pleaded guilty knowingly and voluntarily and that,

at the plea colloquy, he had acknowledged that he understood that he could not

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withdraw his guilty plea based on the length of his sentence and that no one had

made any promises not contained in the plea agreement.

      The district court denied Jerchower’s motion to withdraw his guilty plea.

The court found that Jerchower’s assertion that he had not received close

assistance of counsel was belied by his statements during the plea colloquy.

Jerchower had not shown his statements regarding his understanding of the

sentencing process, statutory sentencing range, or limitations on withdrawing his

guilty plea to be false. Nor had Jerchower shown that his statement that no one

had promised him a specific sentence was false.

      The court ultimately sentenced Jerchower to 262 months’ imprisonment,

and Jerchower timely appealed.

                                         II.

      We review de novo questions regarding the district court’s jurisdiction.

United States v. Oliver, 148 F.3d 1274, 1275 (11th Cir. 1998). Jurisdictional

issues—that is, issues regarding whether a court has the power to hear a

case—cannot be forfeited or waived. United States v. Cotton, 535 U.S. 625, 630,

122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002). Thus, jurisdictional issues must be

resolved even if neither party raised such issues before the district court. Id. We

review both a district court’s decision not to hold an evidentiary hearing and a

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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). The

district court does not abuse its discretion unless its decision “is arbitrary or

unreasonable.” Id. (quotation omitted). A district court’s refusal to hold an

evidentiary hearing is not an abuse of discretion where the court conducted an

extensive plea colloquy. Id.

      Under the law of the case doctrine, a district court is required to follow an

appellate mandate, and the district court may not “assert jurisdiction over matters

outside the scope of a limited mandate.” United States v. Tamayo, 80 F.3d 1514,

1520 (11th Cir. 1996). In contrast, where we vacate a criminal sentence, the

sentence “becomes void in its entirety.” United States v. Stinson, 97 F.3d 466, 469

(11th Cir. 1996). In such a case, the sentence “has been wholly nullified and the

slate wiped clean.” Id. (quotation omitted). In Stinson, the government had asked

the district court to impose an upward departure at the defendant’s first sentencing

hearing, but the court had refused to do so. Id. at 468. The government did not

appeal that denial. Id. at 469. At the defendant’s resentencing hearing, the

government again asked for an upward departure, and the district court changed

course and granted the request. Id. at 468. We rejected the defendant’s argument

that, by failing to appeal the denial of an upward departure, the government had

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waived its right to seek a departure at the resentencing hearing. Id. at 469. We

explained that, “consistent with our holistic approach to sentencing, once a

criminal sentence is vacated, the sentence and any consequences that flow from

that sentence are totally wiped away.” Id.

      A defendant may withdraw a guilty plea after the district court accepts the

plea, but before it imposes sentence, if “the defendant can show a fair and just

reason for requesting the withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). Once the court

imposes sentence, a defendant may not withdraw his guilty plea. Fed.R.Crim.P.

11(e). We have applied the “fair and just reason” standard in a case where the

defendant did not move to withdraw his guilty plea until his resentencing hearing.

United States v. Johnson, 89 F.3d 778, 779, 784 (11th Cir. 1996).

      We consider four factors when reviewing the district court’s denial of a

motion to withdraw a guilty plea: “(1) whether close assistance of counsel was

available; (2) whether the plea was knowing and voluntary; (3) whether judicial

resources would be conserved; and (4) whether the government would be

prejudiced if the defendant were allowed to withdraw his plea.” Brehm, 442 F.3d

at 1298 (quotation omitted). In making its decision, the district court “may

consider the totality of the circumstances surrounding the plea.” Id. (quotation

omitted). “The good faith, credibility and weight of a defendant’s assertions in

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

decide.” Id. (quotation omitted). “There is a strong presumption that the

statements made during the [plea] colloquy are true.” United States v. Medlock,

12 F.3d 185, 187 (11th Cir. 1994). The defendant “bears a heavy burden” to show

statements made under oath at a plea colloquy were false. United States v. Rogers,

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

      Here, the district court had jurisdiction to consider Jerchower’s motion. Our

earlier mandate in Jerchower’s case was not a limited mandate. Rather, we

vacated Jerchower’s entire sentence. See Jerchower, 631 F.3d at 1187; Stinson,

97 F.3d at 469. As in Stinson, the consequences stemming from the original

sentencing, including the Rule 11(e) prohibition on the withdrawal of a guilty

plea, were “wiped away” when the sentence was vacated. 97 F.3d at 469.

Because Jerchower filed his motion to withdraw his guilty plea before being

resentenced, the district court had jurisdiction to consider the motion.

See Fed.R.Crim.P. 11(d)(2).

      Next, because the magistrate conducted an extensive plea colloquy, the

district court did not abuse its discretion in refusing to hold an evidentiary hearing

on Jerchower’s motion to withdraw his guilty plea. See Brehm, 442 F.3d at 1298.

On appeal, Jerchower argues that the district court should not have relied on the

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plea colloquy because he did not dispute the sufficiency of the magistrate’s

inquiries during the plea colloquy. This argument is meritless because

Jerchower’s testimony during the plea colloquy regarding his understanding of the

sentencing process and the sentence he might receive went directly to the validity

of the claims he made in his motion.

      Finally, the district court did not abuse its discretion in denying Jerchower’s

motion to withdraw his guilty plea. See Brehm, 442 F.3d at 1298. Jerchower’s

sole argument on appeal regarding the merits of his motion is that he did not

receive close assistance of counsel because Harper gave him inaccurate

information regarding the sentence he would receive, thereby rendering his plea

not knowing and voluntary. The district court’s finding that this assertion was

belied by his testimony during the plea colloquy was correct. Jerchower testified

that he understood that: (1) his term of imprisonment could be as short as ten years

or as long as life imprisonment; (2) the district court could impose a term of

imprisonment that was below or above the advisory guideline range; (3) the

sentence he received might be different from any estimate that Harper had

provided; and (4) he would not be permitted to withdraw his guilty plea because

he received a longer sentence than he expected. He further testified that no one

had promised him that he would receive a specific sentence. The district court

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determines the credibility and weight to give Jerchower’s assertions in support of

his motion, and here, the district court rightfully credited Jerchower’s testimony

that he had not been promised a specific sentence rather than his assertion to the

contrary in his motion to withdraw his guilty plea. See id. Jerchower did not meet

the “heavy burden” to show that his testimony during the plea colloquy was false.

Rogers, 848 F.2d at 168. Therefore, Jerchower did not show that his plea was not

knowing and voluntary due to a lack of close assistance of counsel, and the district

court did not abuse its discretion in denying his motion to withdraw his guilty

plea. See Brehm, 442 F.3d at 1298.

      For the foregoing reasons, we affirm Jerchower’s conviction and sentence.

      AFFIRMED.




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