     Case: 08-40261     Document: 00511205491         Page: 1     Date Filed: 08/17/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          August 17, 2010
                                       No. 08-40261
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

ROBERT ARBUCKLE,

                                                  Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                           USDC No. 4:06-CR-198-ALL


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Robert Arbuckle pleaded guilty on the day of trial to two counts in a 152-
count indictment: conspiracy to commit wire fraud and aggravated identity theft
(Count 1) in violation of 18 U.S.C. § 371 and conspiracy to commit money
laundering (Count 45) in violation of 18 U.S.C. § 1956.                 As part of a plea
agreement, he expressly waived his right to appeal his conviction and sentence
on any ground. In addition, he reserved the right to challenge only the failure
of the district court, after accepting the plea agreement, to impose a sentence in



       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                  No. 08-40261

accordance with the terms of the agreement and to bring a claim of ineffective
assistance of counsel that affects the validity of the appeal waiver. The parties
agreed that “the appropriate sentence for the defendant is 120 months of
imprisonment followed by a term of five years of supervised release.”
      Arbuckle moved to withdraw his guilty plea on the ground that it was not
knowingly or voluntarily entered because the plea agreement incorrectly noted
that the applicable statutory maximum penalty for Count 1 was 20 years, when
the correct statutory maximum penalty is actually five years, and because the
error was perpetuated by the district court at the plea hearing. Arbuckle also
asserted that the plea agreement incorrectly reflected that the applicable term
of supervised release for each offense was five years when the correct term of
supervised release for each offense is not more than three years. The district
court denied Arbuckle’s motion to withdraw his guilty plea and sentenced him
to concurrent terms of five years of imprisonment on Count 1 and 120 months
of imprisonment on Count 45, and to two concurrent three-year terms of
supervised release.
      On appeal, Arbuckle argues that (1) his guilty plea was involuntary
because the district court did not define the term “proceeds” to ensure that he
understood the elements of the offense to which he was pleading guilty, (2) the
district court abused its discretion in failing to permit him to withdraw his guilty
plea because his guilty plea was invalid, and (3) the government deprived him
of the right to sell assets to pay for his defense in violation of his Sixth
Amendment right to counsel. For the following reasons, we affirm the district
court’s judgment.
      We note, as an initial matter, that Arbuckle’s waiver-of-appeal provision
does not bar his attacks on the validity of his guilty plea and appeal waiver.
Although a defendant may waive his statutory right to appeal in a valid plea
agreement, see United States v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992), a
waiver of appeal is not valid unless both the defendant’s guilty plea and the

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waiver of appeal were knowingly and voluntarily entered, United States v.
Robinson, 187 F.3d 516, 517 (5th Cir. 1999) (“Although a defendant may waive
his right to appeal as part of a plea agreement with the [g]overnment, this
waiver must be informed and voluntary.” (internal quotation marks and citation
omitted)).1
       Arbuckle’s challenge to the district court’s failure to define “proceeds”
stems from the Supreme Court’s decision in United States v. Santos, 553 U.S.
507, 128 S. Ct. 2020 (2008), in which a four-justice plurality concluded that
“proceeds” under § 1956 means “profits” rather than “gross receipts.” Id. at
2025. Unlike the plurality, however, Justice Stevens, who provided the decisive
fifth vote for this position, “did not consider this definition to be the statute’s
definition of ‘proceeds’ in all criminal contexts. . . . He would interpret ‘proceeds’
in the statute to mean one thing in some criminal contexts and another thing in
other criminal contexts.” United States v. Brown, 553 F.3d 768, 783 (5th Cir.
2008), cert. denied, 129 S. Ct. 2812 (2009). Furthermore, the plurality and the
dissent disagreed as to the proper characterization of Justice Steven’s
concurrence. Id. at 783-84. Accordingly, at the time the district court rendered
its decision in this case, this court recognized that “[t]he precedential value of
Santos is unclear outside the narrow factual setting of that case, and the




       1
          This court has also recognized that “[a] trial court cannot enter judgment on a plea
of guilty unless it is satisfied that there is a factual basis for the plea,” and therefore, this
court has power to review a plea “if the factual basis for the plea fails to establish an element
of the offense which the defendant pled guilty to.” United States v. Baymon, 312 F.3d 725, 727
(5th Cir. 2002) (internal quotation marks and citations omitted). Arbuckle, however, does not
assert that the plea lacks a factual basis. Rather, Arbuckle urges that he “did not plead
knowingly and voluntarily” because the district court deprived him of the “opportunity to
consider with knowledge whether he was truly guilty of money laundering” by failing to define
the term “proceeds.”

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decision raises as many issues as it resolves for the lower courts.”2 Id. at 783
(citing Santos, 128 S. Ct. at 2020).
       Because Arbuckle did not object to the district court’s failure to define
“proceeds” or otherwise object to the elements of the offense, we review this
claim for plain error. See United States v. Vonn, 535 U.S. 55, 59 (2002); see
United States v. Fernandez, 559 F.3d 303, 316 (5th Cir.), cert. denied, 130 S. Ct.
139 (2009). “Such a review requires that there be error, that is plain, that
affects the defendant’s substantial rights. Even then, the court must determine
that the error ‘seriously affects the fairness, integrity or public reputation of
judicial proceedings’ in order to correct it.” Fernandez, 559 F.3d at 316 (citation
omitted). Thus, Arbuckle must “show a reasonable probability that, but for the
error, he would not have entered the plea.” United States v. Dominguez Benitez,
542 U.S. 74, 76 (2004).
       Here, any error by the district court in not defining the term “proceeds”
could not have been clear or obvious because the law governing the definition of
proceeds under § 1956 was unclear at the time the district court rendered its
decision. See Fernandez, 559 F.3d at 316. Moreover, Arbuckle has failed to
provide any evidence, other than mere conclusory statements, that he would not
have agreed to plead guilty and accept the 120-month sentence but for the
district court’s failure to define the term “proceeds.” See Dominguez Benitez, 542
U.S. at 76. Indeed, Arbuckle’s bare assertions ring particularly hollow given
that even if he could prove his innocence as to Count 45 under the profits
definition of “proceeds,” he still faced 151 other counts if he proceeded to trial,
which together carried a potential sentence of well over 100 years. Accordingly,

       2
         Approximately one year after Santos, Congress amended the money-laundering
statute to provide a definition of the term “proceeds.” Fraud Enforcement and Regulatory Act
of 2009, Pub. L. No. 111-21, § 2(f)(1)(B), 123 Stat. 1617, 1618 (2009) (defining proceeds to
“mean[] any property derived from or obtained or retained directly or indirectly, through some
form of unlawful activity, including the gross receipts of such activity.”); see also 18 U.S.C. §
1956(c)(9). Accordingly, Santos only applies to pre-amendment cases because Congress has
resolved the “proceeds” question for cases brought after May 20, 2009.

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Arbuckle has not established the district court’s failure to define the term
“proceeds” as “profits” constitutes plain error.
      Arbuckle next argues that the district court abused its discretion in
denying his motion to withdraw his guilty plea. Here, the district court would
have been within its discretion to withdraw Arbuckle’s guilty plea. It is well
established that “a district court may, in its discretion, permit withdrawal before
sentencing if the defendant can show a “‘fair and just reason.’” United States v.
Powell, 354 F.3d 362, 370 (5th Cir. 2003) (citation omitted); see also
Fed. R. Crim. P. 11(d)(2). Arbuckle, however, has no absolute right to withdraw
his plea, and “[t]he burden of establishing a fair and just reason for withdrawing
a guilty plea remains at all times on the defendant.” United States v. Still, 102
F.3d 118, 124 (5th Cir. 1996) (citation omitted). “A district court’s denial of a
motion to withdraw a guilty plea is reviewed for abuse of discretion.” Powell,
354 F.3d at 370 (citation omitted); see also United States v. Mann, 161 F.3d 840,
860 (5th Cir. 1998) (“A district court abuses its discretion if it bases its decision
on an error of law or a clearly erroneous assessment of the evidence.” (citation
omitted)).
      The district court should consider seven factors when deciding whether to
allow a defendant to withdraw his guilty plea: (1) whether the defendant has
asserted his innocence; (2) whether withdrawal would prejudice the government;
(3) whether the defendant has delayed in filing his withdrawal motion; (4)
whether withdrawal would substantially inconvenience the court; (5) whether
close assistance of counsel was available; (6) whether the original plea was
knowing and voluntary; and (7) whether withdrawal would waste judicial
resources. United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984). The
district court, however, “is not required to make findings as to each of the Carr
factors.” Powell, 354 F.3d at 370 (citation omitted). Rather, the court’s decision
should be based on the totality of circumstances. Id. “No single factor or



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combination of factors mandates a particular result.” United States v. Badger,
925 F.2d 101, 104 (5th Cir. 1991).
      Arbuckle argues that the district court, in considering the Carr factors, did
not give sufficient weight to the fact that he was misinformed about the correct
statutory maximum for Count 1 prior to pleading guilty, which demonstrated
that his plea was not knowing and voluntary and that he did not have close
assistance of counsel. He also argues that his guilty plea was involuntary
because it was based on promises made by the government, it was induced by his
numerous jail transfers, and it was the result of counsel’s ineffective assistance.
Finally, he contends that he asserted his innocence, that the government has not
shown that it would be extraordinarily prejudiced, that any delay in filing the
motion should not be held against him, and that granting the motion would not
inconvenience the court or waste judicial resources.
      Our review of the Carr factors reveals no abuse of discretion by the district
court. Although Arbuckle initially asserted his innocence prior to the trial date,
he subsequently admitted the factual elements of the offense, he pleaded guilty
at the plea hearing, and his plea was accepted by the district court. Moreover,
Arbuckle was cross-examined during the hearing on the motion to withdraw his
plea and he again stipulated to the admissions he made at the plea hearing.
Accordingly, his subsequent declaration of guilt “carrie[s] a strong presumption
of verity.” See United States v. McKnight, 570 F.3d 641, 649 (5th Cir. 2009)
(“Because solemn declarations in open court carry a strong presumption of
verity, the district court did not abuse its discretion in placing little weight on
[the defendant’s] assertion of innocence.” (internal quotation marks and citations
omitted)).
      In addition, after learning of the error in the plea agreement, which had
been perpetuated at the Rule 11 hearing, Arbuckle delayed more than six weeks
before moving to withdraw his guilty plea. See United States v. Adam, 296 F.3d
327 (5th Cir. 2002) (affirming denial of motion to withdraw guilty plea where

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defendant gave notice to withdraw two weeks after entering the plea); Carr, 740
F.2d at 345 (affirming denial of motion to withdraw guilty plea where defendant
gave notice to withdraw three weeks after entering the plea). Moreover, the
court had set aside three weeks to try the case, and the government had
prepared for trial and made arrangements to bring witnesses from various parts
of the country. In fact, the government had already transported some of the
witnesses to Texas and would either be required to hold the witnesses over in
Texas indefinitely or pay a second time for their transportation to the
courthouse. Given that Arbuckle waited until the day of trial to plead guilty,
such additional expenditures likely would inconvenience the government. In
addition, this court has recognized the inconvenience that rescheduling a trial
places on the district court. See, e.g., Carr, 740 F.2d at 345 (determining that
rescheduling a two-to-three-week trial “would have inconvenienced the trial
court by disrupting its docket”); McKnight, 570 F.3d at 650 (noting that even the
rescheduling of a two-day trial “does not necessitate a finding that there is no
inconvenience to the district court”).
      Although the remaining Carr factors—i.e., the validity of the original plea
and whether Arbuckle received the close assistance of counsel—present a closer
question, our review of these factors convinces us that Arbuckle’s guilty plea was
knowing and voluntary and that he had close assistance of counsel. With respect
to the validity of Arbuckle’s guilty plea, Rule 11 requires, inter alia, that the
district court inform the defendant about “any maximum possible penalty,
including imprisonment” before it accepts the plea. Fed. R. Crim. P. 11(b)(1)(H).
Any variance from the Rule 11 procedures is subject to a harmless-error
analysis, and we review such challenges de novo. United States v. Lujano-Perez,
274 F.3d 219, 224 (5th Cir. 2001). If the district court failed to comply with Rule
11, we consider whether the court’s “noncompliance affected the defendant’s
substantial rights such that ‘knowledge and comprehension of the full and
correct information would have been likely to affect his willingness to plead

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guilty.’” Id. (quoting United States v. Johnson, 1 F.3d 296, 302 (5th Cir. 1993)
(en banc)).
      The district court did not comply with Rule 11(b)(1)(H) when it failed to
inform Arbuckle of the correct statutory maximum term of imprisonment and
supervised release for Count 1. Arbuckle’s bare assertion that he would not have
pleaded guilty if he had known that Count 1 carried only a five-year statutory
maximum, however, is unconvincing.           Count 45 alone carried a 20-year
maximum term of imprisonment, see § 1956(a), and any sentence imposed for
Count 1 would have run concurrently with Count 45. Further, as noted above,
if Arbuckle had not entered into the plea agreement, he likely would have
proceeded to trial on all 152 counts that day and would have faced a significantly
higher maximum sentence than the one agreed upon in the plea agreement. In
addition, Arbuckle points to no evidence supporting his assertion that he had a
better defense as to the other counts. Thus, we conclude that the district court’s
Rule 11 error did not affect his substantial rights. See United States v. Vasquez-
Bernal, 197 F.3d 169, 171 (5th Cir. 1999) (finding in light of the circumstances
surrounding the plea hearing that it would be “absurd” to conclude that the
defendant’s alleged lack of knowledge about the consequences of his crime
actually affected his decision to plead guilty).
      To the extent that Arbuckle contends that the government’s alleged failure
to abide by an oral agreement also affected the validity of his plea or the plea
agreement, the record does not reflect that Arbuckle’s guilty plea rested “in any
significant degree” on the alleged promise. See Santobello v. New York, 404 U.S.
257, 262 (1971) (“[W]hen a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part of the inducement
or consideration, such promise must be fulfilled.”). At his plea hearing, Arbuckle
specifically denied that anyone made any promises or inducements to him to get
him to plead guilty. Moreover, by signing the plea agreement, he affirmed that
(1) his plea was freely and voluntarily made, (2) his plea was not the result of

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any promises other than those set forth in the agreement, (3) the plea agreement
was “a complete statement of the parties’ agreement,” (4) the plea agreement
“supersedes all other plea agreements,” and (5) “[n]o other promises have been
made or implied.”
      In contrast to the unambiguous statements made at his plea hearing and
in the written plea agreement, Arbuckle asserts that had his father, Arbuckle
Sr., been allowed to testify at the hearing on his motion to withdraw the guilty
plea, he would have corroborated the existence of the alleged oral agreements.
According to the proffer, which the court accepted but did not admit into
evidence, Arbuckle Sr. would have testified that Mr. Cobb, one of Arbuckle’s
attorneys, represented to him that “if his son pled guilty . . . he probably
wouldn’t do any more than five by cooperating with the [g]overnment, and the
likelihood that he would spend time in jail would be very, very low because he
would have to have the computer and access to the Internet in order to help the
government.” When Arbuckle’s trial counsel asked him about these issues at the
hearing, the government objected because the subject-matter was outside the
scope of Arbuckle’s motion to withdraw his guilty plea, and the district court
sustained the objection. Arbuckle, however, does not argue in his initial brief
that the district court’s ruling on this objection constituted error, plain or
otherwise. Accordingly , we need not consider the issue because “[a]n appellant
abandons all issues not raised and argued in [his] initial brief on appeal.” Cinel
v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (citations omitted). Arbuckle,
however, does not waive an ineffective assistance of counsel claim with respect
to his trial counsel’s failure to introduce Arbuckle Sr.’s testimony into evidence.
Nevertheless, as explained below, we decline to review such ineffective
assistance of counsel claims on direct appeal because the record is insufficiently
developed. United States v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987); see also
United States v. Bounds, 943 F.2d 541, 544 (5th Cir. 1991).



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      Arbuckle has also failed to demonstrate that the prosecutor “induced his
guilty plea by clearly and unequivocally guaranteeing a lesser sentence or some
other specific leniency.” Daniel v. Cockrell, 283 F.3d 697, 703 (5th Cir. 2002)
(“Where a defendant can show that the court, the prosecutor or defense counsel
induced his guilty plea by clearly and unequivocally guaranteeing a lesser
sentence or some other specific leniency, the guilty plea is not voluntary unless
the defendant receives that which he was promised.”), abrogation on other
grounds recognized by United States v. Grammas, 376 F.3d 433, 437-38 (5th Cir.
2004). Nowhere in the plea agreement does the government guarantee that it
would recommend any leniency. To the contrary, the agreement unequivocally
provides that the recommendation of any such departure is in the government’s
“sole discretion” and that Arbuckle’s cooperation “does not automatically require
the United States to request a downward departure or a reduction in sentence.”
Furthermore, the plea agreement notified Arbuckle in bold text that “[i]t is
entirely within the [c]ourt’s discretion as to what, if any, reduction in sentence
[Arbuckle] will receive.” Similarly, Arbuckle has failed to demonstrate that his
transfers between jail facilities induced him to plead guilty or hindered his
ability to assist in his defense. Aside from bald assertions, Arbuckle provides no
evidence that his jail transfers pressured him to plead guilty.
      Finally, Arbuckle contends that his counsel was ineffective and that, as a
result, he did not have close assistance of counsel. Particularly, Arbuckle claims
that his trial counsel (1) failed to advise him as to the meaning of “proceeds”
under § 1596, (2) performed little or no investigation, (3) failed to act on his
request to develop evidence for his defense, and (4) threatened to disclose
information covered by attorney-client privilege if Arbuckle continued to assert
his attorney’s incompetence. Insofar as Arbuckle raises claims of ineffective
assistance of counsel distinct from his challenge to the district court’s denial of
his motion to withdraw his guilty plea, we decline to review them on direct
appeal because the record is insufficiently developed. United States v. Higdon,

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832 F.2d 312, 314 (5th Cir. 1987); see also United States v. Bounds, 943 F.2d 541,
544 (5th Cir. 1991).
      Whether a defendant received ineffective assistance of counsel under the
Sixth Amendment, however, is distinct from whether he had close assistance of
counsel under Rule 11(d)(2)(B). McKnight, 570 F.3d at 646. Moreover, whether
a defendant received close assistance of counsel is a fact-intensive inquiry. Id.
at 646-47.   Arbuckle testified at the plea hearing that (1) he had “a clear
understanding . . . of what the results would be from [his] actions in court,”
(2) he was satisfied with the representations of his trial counsel, (3) he discussed
the charges and the plea agreement with his attorney, (4) his attorney reviewed
the government’s evidence with him, (5) he was satisfied that his attorney fully
considered his case and any possible defenses to the charges, (6) he was satisfied
that his attorney put his interests first, and (7) there were no conflicts between
him and his attorney.
      Furthermore, the record in this case reflects that counsel filed numerous
motions, such as a motion to continue the trial, motions for an expedited bond
hearing, motions for discovery, a motion for medical treatment, a motion in
limine, and a motion for sanctions.       The record also reflects that counsel
prepared questions to be presented to prospective jurors during voir dire and
negotiated the plea agreement with the government. In addition, counsel’s
failure to correct the misstatement in the plea agreement or during the plea
hearing, by itself, does not indicate that Arbuckle did not receive close assistance
of counsel at the time he entered his plea. See id. at 647 (holding that counsel’s
failure to inform defendant that he would be subject to a career-offender
enhancement did not demonstrate, in light of the record, that defendant did not
receive close assistance of counsel). Accordingly, in light of the record as a
whole, Arbuckle has failed to show that he did not receive close assistance of
counsel at the time he entered his guilty plea.



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      Having considered the Carr factors, we conclude that Arbuckle has failed
to show a “fair and just reason” to change his guilty plea under the totality of the
circumstances.     Therefore, the district court did not abuse its discretion in
denying the motion.
      As to Arbuckle’s third claim that he was denied his right to sell assets,
because the claim does not fall within an exception to his knowing and voluntary
waiver of appeal, we conclude that the claim is barred. See United States v.
Dees, 125 F.3d 261, 269 (5th Cir. 1997) (“So long as a plea is informed and
voluntary, we will enforce a waiver of appeal.” (citation omitted)); see also United
States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005) (“To determine whether an
appeal of a sentence is barred by an appeal waiver provision in a plea
agreement, we conduct a two-step inquiry: (1) whether the waiver was knowing
and voluntary and (2) whether the waiver applies to the circumstances at hand,
based on the plain language of the agreement.” (citation omitted)).
      Accordingly, the judgment of the district court is AFFIRMED.




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