         Case: 19-11919   Date Filed: 07/28/2020   Page: 1 of 13



                                                     [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                          No. 19-11919
                      Non-Argument Calendar
                    ________________________

              D.C. Docket No. 1:17-cr-00007-MW-GRJ-1



UNITED STATES OF AMERICA,


                                                            Plaintiff-Appellee,


                                versus


BELINDA SHEPPARD-LEWIS,


                                                        Defendant-Appellant.

                    ________________________

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

                            (July 28, 2020)
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Before WILSON, LAGOA, and ANDERSON, Circuit Judges.

LAGOA, Circuit Judge:

       Belinda Sheppard-Lewis (“Sheppard-Lewis”) appeals from the district court’s

denial of her motion to withdraw her guilty plea, arguing that she did not knowingly

and voluntarily enter her guilty plea and instead thought that she could withdraw her

plea at any time before sentencing. For the reasons discussed below, we affirm.

I.     FACTUAL AND PROCEDURAL BACKGROUND

       In 2017, the government indicted Sheppard-Lewis for making false statements

on her income tax return in violation of 26 U.S.C. § 7206(1), wire fraud in violation

of 18 U.S.C. § 1343, and aggravated identity theft in violation of 18 U.S.C. §

1028A(a)(1).

       A. The Change of Plea Hearing

       In September 2018, Sheppard-Lewis pleaded guilty to all charges against her

without a written plea agreement. 1 At her change of plea hearing, the magistrate

judge advised Sheppard-Lewis that he would be asking a series of questions to

confirm that she was knowingly and voluntarily making the plea and to find a

sufficient factual basis to support her guilty plea. The magistrate judge also advised

Sheppard-Lewis that she could stop and speak to her attorney in private at any time.


       1
         Sheppard-Lewis consented to change her plea to guilty before the magistrate judge and
to reduce the time period to object to the magistrate judge’s report and recommendation to twenty-
four hours.
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Under oath, Sheppard-Lewis confirmed that she understood her discussions with the

magistrate judge and that she was not under the influence of drugs, medication, or

any other intoxicating substance.        She then discussed her educational and

professional background prior to establishing her own tax preparation business.

      Sheppard-Lewis then admitted the truth of the charges against her and

acknowledged the various rights she was giving up as a result of her guilty plea. As

to her potential sentence, Sheppard-Lewis testified that she had spoken to her

attorney about the matter and her attorney was able to answer whatever questions

she had. She also testified that she understood that she would not be able to withdraw

her plea if her resulting sentence was harsher than what she anticipated.

      The magistrate judge explained to Sheppard-Lewis the elements of, and

potential penalties for, the charges against her. Sheppard-Lewis confirmed that she

understood the charges against her and that, absent her guilty plea, the government

would have to prove those charges beyond a reasonable doubt. Sheppard-Lewis

pleaded guilty to all six counts in the indictment.

      The magistrate judge next told Sheppard-Lewis that the government would be

proffering what it expected to prove if the case went to trial and cautioned her to

“listen carefully” because he would be asking her under oath if she agreed with those

allegations. The government recited the factual bases for each charge against

Sheppard-Lewis, and she admitted to those facts. As a result, the magistrate judge


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found an adequate factual basis for Sheppard-Lewis’s guilty plea. Moreover,

Sheppard-Lewis confirmed that she was entering into her plea freely and voluntarily,

without force, threats, intimidation, or coercion.

      Sheppard-Lewis’s attorney advised the magistrate judge that the parties had

agreed to postpone sentencing pending this Court’s decision in United States v.

Munksgard, 913 F. 3d 1327 (11th Cir. 2019), where this Court was presented with a

question about the scope of the term “use” in the criminal statute for aggravated

identity theft. The parties agreed that in the event of a favorable ruling for the

defendant in Munksgard, Sheppard-Lewis would have been able to avoid sentencing

for that charge notwithstanding her guilty plea. The government and Sheppard-

Lewis, however, confirmed that her plea was not conditional and that their

agreement was limited to a delayed sentencing.

      Sheppard-Lewis confirmed that there were no other agreements or promises

underlying her guilty plea. Sheppard-Lewis further testified that she was satisfied

with her attorney’s representation of her during the case and confirmed that she told

the truth during the plea colloquy. She also repeated her desire to plead guilty.

      The magistrate judge concluded that Sheppard-Lewis was intelligent,

understood the charges and possible penalties against her, and appreciated the

consequences of pleading guilty. Based on Sheppard-Lewis’s admission to the

government’s allegations, the magistrate judge also found that the elements of the


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charged offenses were met. Finally, the magistrate judge found that Sheppard-Lewis

entered her plea freely, voluntarily, knowingly, and intelligently, with the advice of

competent counsel.

      The magistrate judge issued a report and recommendation to the district court

recommending that the court accept Sheppard-Lewis’s guilty plea. The district court

adopted the magistrate judge’s report and recommendation and accepted Sheppard-

Lewis’s guilty plea.    Based on the parties’ agreement that Sheppard-Lewis’s

sentencing be delayed pending this Court’s decision in Munksgard, the district court

postponed the sentencing.

      B. Sheppard-Lewis seeks to withdraw her plea

      On January 30, 2019, this Court issued its decision in Munksgard holding, in

relevant part, that the term “use,” for purposes of aggravated identity theft under 18

U.S.C. § 1028A, did not require a showing that the defendant tried to impersonate

or act on behalf of another person. 913 F.3d at 1334-36.

      On the day of her sentencing, Sheppard-Lewis filed a motion to withdraw her

guilty plea claiming that, following this Court’s opinion in Munksgard, she informed

her attorney that she believed she was not guilty of identity theft and wished to

proceed with trial. In the motion, Sheppard-Lewis further argued that, based on a

meeting with her attorney prior to her guilty plea, she believed she could withdraw

her guilty plea at any time before sentencing, and that she would not have entered a


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guilty plea had she known that she could not withdraw it before sentencing. As

noted in her motion, her attorney did not share the same recollection of that meeting.

The district court referred the motion to the magistrate judge.

      At the evidentiary hearing before the magistrate judge on her motion to

withdraw her guilty plea, Sheppard-Lewis advised the court that she would be hiring

a new attorney because of the conflicting accounts of her discussions with counsel

and because she had lost confidence in him. Recognizing the differing testimony

that may be elicited from Sheppard-Lewis and her attorney, the magistrate judge

continued the hearing on her motion to withdraw her guilty plea in order to allow

her an opportunity to retain new counsel.

      C. The continued evidentiary hearing on Sheppard-Lewis’s motion to
         withdraw her guilty plea
      On April 3, 2019, Sheppard-Lewis and her new counsel appeared at the

continued hearing, and she testified that her prior attorney told her that she could

change her plea at any time and, absent that understanding, she would not have

pleaded guilty. She further testified that her prior attorney told her to answer “yes”

to whatever the judge asked and that she was therefore dishonest during the plea

colloquy. Sheppard-Lewis claimed that she did not read the statement of facts she

signed in conjunction with the plea and never agreed to plead guilty to identity theft.

However, she admitted that she understood what the magistrate judge said during



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the plea colloquy. Sheppard-Lewis maintained that she disputed the facts underlying

her guilty plea because she did not “steal” anyone’s personal information.

      Sheppard-Lewis’s prior attorney testified that he examined the evidence

against Sheppard-Lewis and discussed it with her on various occasions. He also

testified that they went through the statement of facts that Sheppard-Lewis signed,

and she appeared to read through it, although he could not confirm whether she

indeed read it in its entirety. He did not see any statements in that document that he

knew to be untrue and believed that Sheppard-Lewis understood the facts she was

admitting. He further testified that he did not tell Sheppard-Lewis that she could

withdraw her plea at any time and did not instruct her on what to say at the plea

colloquy.

      On April 5, 2019, the magistrate judge issued a report and recommendation to

the district court recommending that it deny Sheppard-Lewis’s motion to withdraw

her guilty plea. The magistrate judge found that Sheppard-Lewis was not credible

in her testimony, noting that she admitted to lying in her plea colloquy and did not

provide any justification for her belief that she could freely withdraw her plea at any

time. The magistrate judge also noted that Sheppard-Lewis had close assistance of

counsel and did not identify any shortcomings in legal representation or

dissatisfaction with legal services—other than her claim that her prior attorney told

her to answer “yes” to all questions during the plea colloquy. Further, the magistrate


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judge found that Sheppard-Lewis’s plea was knowing and voluntary because, at the

plea colloquy, the magistrate judge and the government each recited the charges and

potential penalties against her and the consequences of her guilty plea, which she

acknowledged and agreed to.      The magistrate judge mentioned the timing of

Sheppard-Lewis’s motion to withdraw—which was filed on the day she was to be

sentenced, five months after her plea, and after twelve continuances during the two

years that the case had been pending—to conclude that her motion suggested

“buyer’s remorse.” The magistrate judge’s report and recommendation contained a

notice advising the parties that any objections to the report and recommendation

must be filed and served within fourteen days and a party’s failure to object would

waive “the right to challenge on appeal the district court’s order based in the

unobjected-to factual and legal conclusions.”

      After receiving no objections from either party, the district court adopted the

magistrate judge’s report and recommendation and denied Sheppard-Lewis’s motion

to withdraw her guilty plea. The district court then sentenced Sheppard-Lewis to

thirty months’ imprisonment followed by one year of supervised release. This

appeal ensued.

II.   STANDARD OF REVIEW

      We review the district court’s denial of a motion to withdraw a guilty plea for

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


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However, when a defendant fails to object to a magistrate judge’s report and

recommendation, after being advised of the consequences for failing to do so, our

review of the factual findings, as adopted by the district court, is limited to a plain

error analysis. See Fed. R. Crim. P. 59(a); 11th Cir. R. 3-1; United States v. Keelan,

786 F.3d 865, 872 (11th Cir. 2015). To show plain error, the defendant must show

that there was (1) an error, (2) that was plain, and (3) that affected substantial rights.

United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). If all three conditions

are met, an appellate court may then exercise its discretion and review the otherwise

waived error but only if “the error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id. (quoting United States v. Monroe, 353 F.3d

1346, 1349 (11th Cir. 2003)).

III.   ANALYSIS

       “[T]here is no absolute right to withdraw a guilty plea prior to imposition of

a sentence.” United States v. Buckles, 843 F.2d 469, 471 (11th Cir. 1988). Rather,

a defendant seeking to withdraw a guilty plea prior to sentencing must show a “fair

and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). In

determining whether a defendant presents a “fair and just reason” for withdrawal,

courts consider “the totality of the circumstances surrounding the plea.” Buckles,

843 F.2d at 471–72. Courts should consider the following factors: “(1) whether

close assistance of counsel was available; (2) whether the plea was knowing and


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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.” Id. at 472 (citation omitted). However, a district court need not give the latter

two factors considerable weight when a defendant fails to show that the first two

factors favor withdrawal. See United States v. Gonzalez-Mercado, 808 F.2d 796,

801 (11th Cir. 1987).

         Sheppard-Lewis argues that she should have been allowed to withdraw her

guilty plea because she did not enter the plea knowingly and voluntarily. In support

of this argument, she points to her prior attorney’s inability to testify as to whether

she definitively read and understood the statement of facts that she signed and argues

that the testimony elicited at the evidentiary hearing on her motion to withdraw her

plea “raises concerns” on whether she knowingly and voluntarily entered her plea.

As such, she contends that the district court abused its discretion in denying her

motion. After reviewing the record, we find Sheppard-Lewis’s argument without

merit.

         To determine whether a plea is knowing and voluntary and therefore complies

with the “core principles” of Rule 11, courts must ensure that (1) the plea is free

from coercion; (2) the defendant understands the nature of the charges; and (3) the

defendant knows and understands the consequences of her plea. United States v.

Jones, 143 F.3d 1417, 1418–19 (11th Cir. 1998). During a plea colloquy, district


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courts, among other things, must consider the complexity of the offense, along with

the defendant’s sophistication and intelligence and whether the defendant has been

sufficiently informed of the consequences of pleading guilty. See United States v.

Presendieu, 880 F.3d 1228, 1238–39 (11th Cir. 2018).

      As noted, although we review a denial of a motion to withdraw a plea for

abuse of discretion, Sheppard-Lewis after being advised of the consequences did not

object to the magistrate judge’s report and recommendation to the district court

recommending that her motion to withdraw her guilty plea be denied. Accordingly,

we review the district court’s adoption of that report and recommendation and denial

of her motion for plain error. See 11th Cir. R. 3-1; Keelan, 786 F.3d at 872. Under

plain error review, Sheppard-Lewis must show not only that the error is plain and

affects her substantial rights but also that the error “seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Turner, 474 F.3d at 1276

(quoting Monroe, 353 F.3d at 1349).

      We find that Sheppard-Lewis has failed to show plain error in the district

court’s denial of the motion to withdraw her guilty plea. In conducting the plea

colloquy, the magistrate judge thoroughly explained the charges against Sheppard-

Lewis and the consequences of her guilty plea. Specifically, the magistrate judge

went through the elements and penalties for each charge and asked the government

to present the facts it believed would be shown at trial. In addition, the magistrate


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judge recited the various rights Sheppard-Lewis would be giving up by pleading

guilty and noted that she would not be able to withdraw her plea if her sentence was

harsher than anticipated.

      At various junctures, the magistrate judge stopped to ensure that Sheppard-

Lewis was following the discussion and understood what he was saying. Sheppard-

Lewis testified that she understood the charges against her and the penalties, the

government’s factual proffer, and the finality of her plea. She also testified that she

had discussed the case, her plea, and her sentencing with her prior attorney and was

satisfied with his legal services. She further testified that the only agreement

underlying her plea was the agreement to postpone sentencing until this Court issued

an opinion in Munksgard.

      While Sheppard-Lewis claims that this testimony should be discounted in

favor of her later testimony while trying to withdraw her plea, we must give a strong

presumption of truthfulness to a defendant’s sworn statements at a plea colloquy.

See United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). Other than her

own testimony seven months later, Sheppard-Lewis points to no evidence that

conclusively contradicts her prior testimony. Without any such evidence, there is

no basis to overturn the magistrate judge’s finding that Sheppard-Lewis was not

credible when later testifying that she did not understand the admissions she made

or the finality of her guilty plea. See Buckles, 843 F.2d at 472–73 (“Guilty pleas


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would be of little value to the judicial system if a defendant’s later conclusory

assertion of innocence automatically negated his plea.”). In addition, the magistrate

judge correctly found that Sheppard-Lewis received close assistance of counsel.

Nothing in the record contradicts the testimony of Sheppard-Lewis and her prior

attorney that they met various times to discuss her case, the evidence against her,

and the consequences of her guilty plea.

        Because we find no plain error in the magistrate judge’s finding, as adopted

by the district court, that Sheppard-Lewis knowingly and voluntarily entered her

guilty plea, we affirm the district court’s denial of her motion to withdraw her guilty

plea.

        AFFIRMED.




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