                                                       [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              AUG 24, 2006
                               No. 06-10539                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                    D. C. Docket No. 04-00192-CR-RWS-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

JOHN HENRY MOORE,

                                                          Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                              (August 24, 2006)

Before ANDERSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

     John Henry Moore appeals his conviction following a guilty plea for bank
robbery by force, violence, or intimidation, in violation of 18 U.S.C. § 2113(a).

On appeal, Moore argues that the district court abused its discretion by denying his

motion to withdraw his guilty plea on the grounds that it had not been intelligently

and voluntarily made. Moore asserts that the plea was not intelligent and voluntary

because his counsel was deficient for not advising him of the defense of bank

larceny.

      We “review the denial of a request to withdraw a guilty plea for abuse of

discretion.” United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006),

(quoting United States v. Freixas, 332 F.3d 1314, 1316 (11th Cir. 2003)). A

decision regarding a plea withdrawal request is not an abuse of discretion unless it

is arbitrary or unreasonable. Id.

      Rule 11 requires a district court, before it accepts a plea of guilty, to inform

the defendant of, and determine that the defendant understands, his rights relevant

to his plea of guilty. Fed. R. Crim. P. 11(b). After the district court has accepted a

defendant’s plea, but before sentencing, a defendant may withdraw his guilty plea

if he “can show a fair and just reason for requesting the withdrawal.”

Fed.R.Crim.P. 11(d)(2)(B). The provisions of this rule should be “liberally

construed.” United States v. McCarty, 99 F.3d 383, 385 (11th Cir. 1996).

However, “[t]here is no absolute right to withdraw a guilty plea.” United States v.



                                           2
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] are issues

for the trial court to decide.” United States v. Buckles, 843 F.2d 469, 472 (11th

Cir. 1988).

      In determining if the defendant has met his burden for withdrawal, “a district

court may consider the totality of the circumstances surrounding the plea,”

including the following factors: “(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 (citing Buckles, 843 F.2d at 472). “There is a strong presumption that

statements made during the [plea] colloquy are true.” Medlock, 12 F.3d at 187.

Consequently, a defendant “bears a heavy burden to show his statements [under

oath] were false.” United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988).

“A plea may be involuntary either because the accused does not understand the

nature of the constitutional protections that he is waiving . . . or because he has

such an incomplete understanding of the charge that his plea cannot stand as an

intelligent admission of guilt.” Gaddy v. Linahan, 780 F.2d 935, 943 (11th Cir.

1986) (citation omitted).



                                           3
      We have held that a guilty plea is not knowing and voluntary if the

defendant does not receive “reasonably effective assistance of counsel in

connection with the decision to plead guilty.” McCoy v. Wainwright, 804 F.2d

1196, 1198 (11th Cir. 1986). In Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984), the Supreme Court articulated a two-prong test for

determining whether a defendant has been denied effective assistance of counsel.

Id. “First, the defendant must show that the counsel’s performance fell below the

threshold level of competence. Second, the defendant must show that counsel’s

errors due to deficient performance prejudiced his defense such that the reliability

of the result is undermined.” Id. In Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct.

366, 370, 88 L.Ed.2d 203 (1985), the Supreme Court held that the two-part

Strickland v. Washington test applies to challenges to guilty pleas based on

ineffective assistance of counsel. The Court held that “in order to satisfy the

prejudice requirement, 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.” Id. (internal quotations omitted). “[W]here

the alleged error of counsel is the failure to advise the defendant of a potential

affirmative defense to the crime charged, the resolution of the prejudice inquiry

will depend largely on whether the affirmative defense likely would have



                                           4
succeeded at trial.” McCoy, 804 F.2d at 1199 (quoting Hill, 474 U.S. at 59, 106

S.Ct. at 371).

      In the instant case, under the first prong of the Buckles analysis, Moore had

the close assistance of counsel because his attorney met with him approximately

five times before the plea hearing and discussed with him the elements of bank

robbery. Although Moore claims that his attorney never discussed the elements of

the offense with him or prepared him for the plea hearing, the district court did not

abuse its discretion in discrediting Moore’s testimony given the attorney’s

testimony that he advised Moore of the elements of bank robbery.

      Under the second prong, Moore’s plea was knowing and voluntary, and his

counsel was not ineffective. The district court did not abuse its discretion in

finding that Moore’s attorney did not err in failing to discuss the larceny defense

because Moore’s conduct constituted bank robbery, not bank larceny. In addition,

the district court did not abuse its discretion by relying on Moore’s admissions

made under oath at his plea hearing. The record reflects that the court reviewed the

elements of bank robbery with Moore during the plea hearing, and Moore indicated

that he understood what the government would have to prove at trial. Further,

Moore admitted the facts supporting the elements of the offense. As Moore has

not satisfied the first two prongs of the Buckles analysis, we need not address the



                                           5
last two.

      In sum, the district court did not abuse its discretion by denying Moore’s

motion to withdraw his guilty plea because his plea was knowing, voluntary, and

counseled, and he did not provide any evidence demonstrating a fair and just

reason for the withdrawal. Accordingly, we affirm his conviction.

      AFFIRMED.




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