                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________           FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-16441         ELEVENTH CIRCUIT
                                                        JULY 19, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                           CLERK

                   D. C. Docket No. 08-00281-CR-J-32MCR

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

ANTONIO MAURICE BING,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                                (July 19, 2010)

Before BLACK, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

     Antonio Maurice Bing appeals the district court’s denial of his motion under
Fed. R. Crim. P. 11(d) to withdraw his plea of guilty to being a convicted felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court did

not abuse its discretion in denying the motion, and therefore we affirm.

                                            I.

      With the assistance of newly appointed counsel, Bing filed a motion to

withdraw his guilty plea six months after having entered it. He asserted that he did

not enter his plea knowingly because of erroneous advice he received from his

previous counsel, namely that despite his plea he could still appeal the denial of

two previously filed motions to suppress.

      Before resolving Bing’s motion, the district court held an evidentiary

hearing during which Bing and his former counsel were the only witnesses. Bing

testified that he always wanted to retain the right to appeal the two suppression

motions and that his counsel presented four options for going forward in his case

that would allow him to do so. Of those options, Bing chose to plead guilty

without a plea agreement and contended that counsel specifically informed him

that this option would preserve his right to appeal the motions as opposed to

merely preserving his right to appeal his sentence once imposed. On cross-

examination, Bing was confronted with the following acknowledgment during his

change-of-plea hearing:



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       The Court:           Now, you may have defenses to your respective
                      charge or charges. But if you plead guilty, you waive
                      and give up your right to assert these defenses.

                            Also, by pleading guilty you also waive and give
                      up your right to challenge the way the government may
                      have obtained any evidence, statement or confession in
                      your respective cases.

                             In addition, by pleading guilty you may lose the
                      right to challenge on appeal any rulings which the Court
                      has made in your case. You understand, Mr Bing?

       Bing:          Yes, sir.

Bing explained that despite these recorded statements he relied on his counsel’s

advice and understood the magistrate judge at that time as saying that he “may or

may not” be giving up his right to appeal the motions. Bing also testified that

following the entry of his guilty plea his counsel reassured him that his right to

appeal was secure despite the magistrate judge’s questioning.

       The testimony of Bing’s previous counsel, who had 23 years of experience

practicing criminal law and handled thousands of change-of-plea hearings, directly

contradicted Bing’s account. He testified that he presented four options to Bing

following the denial of the motions to suppress and explained how Bing’s right to

appeal the motions would be affected under the various options.1 In particular, he



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        Bing’s counsel also advised Bing about entering a conditional plea but counseled that
such a plea was not viable because the prosecutors in that district had never agreed to one before.

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advised that if Bing pleaded guilty he would waive his right to challenge the

rulings on the motions to suppress but would preserve other appellate rights with

respect to his sentence. He did not perceive Bing as having any difficulty

understanding the options or their consequences. He also denied having told Bing

after the change-of-plea hearing that his appellate rights on the motions were

preserved despite what the magistrate judge said. Lastly, the first he heard of

Bing’s desire to preserve those rights at all cost was when Bing filed his motion to

withdraw his guilty plea.

                                          II.

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

abuse of direction. United States v. Najjar, 283 F.3d 1306, 1307 (11th Cir. 2002).

“The good faith, credibility and weight of a defendant’s assertions” in support of

the motion are issues for the trial court to decide. United States v. Buckles, 843

F.2d 469, 472 (11th Cir. 1988). We thus accept the district court’s findings of fact

from Bing’s evidentiary hearing as correct unless they are clearly erroneous. See

Bush v. Singletary, 988 F.2d 1082, 1089 (11th Cir. 1993).

      A defendant may withdraw a guilty plea before the court imposes sentence if

the defendant shows a “fair and just reason” for requesting the withdrawal. Fed. R.

Crim. P. 11(d)(2)(B). In determining whether a defendant has met his burden of



                                          4
showing a fair and just reason, “the district court evaluates the totality of the

circumstances, including ‘(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.’” Najjar, 283 F.3d at 1309 (quoting

Buckles, 843 F.2d at 472.). When a defendant receives close assistance of counsel

and enters his plea knowingly and voluntarily, we give little weight to the latter

two factors. United States v. Gonzales-Mercado, 808 F.2d 796, 801 (11th Cir.

1987).

         A core consideration in determining whether a defendant has entered his

plea knowingly is whether the defendant understood the consequences of his plea.

See United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005). When a

defendant states during the plea colloquy that he understands those consequences,

there is a presumption that his statements are true. See United States v. Medlock,

12 F.3d 185, 187 (11th Cir. 1994).

         The district court did not abuse its discretion in denying Bing’s motion.

During Bing’s plea colloquy, the district court specifically informed Bing of the

adverse consequence of his plea on his right “to challenge the way the government

may have obtained any evidence, statement or confession” in his case. Bing



                                            5
acknowledged that he understood this consequence. Even if Bing misheard or

misunderstood the magistrate judge’s question, the record shows that Bing was

closely counseled prior to his change-of-plea hearing regarding the consequences

of a guilty plea, and substantial evidence existed for the district court to conclude

that Bing understood those consequences.

      Specifically, Bing’s counsel said he advised Bing that by entering into a

guilty plea he would waive his right to appeal the motions to suppress but would

retain his right to appeal his sentence. Neither Bing’s testimony nor his counsel’s

support a finding that Bing confused the two. Rather, Bing testified that counsel

explicitly informed him that his right to appeal the motions would be preserved and

that counsel reassured him of that fact following the change-of-plea hearing. His

counsel, however, flatly denied that he provided such advice, either before or after

the hearing, and also denied that Bing clearly conveyed his desire to preserve his

right to appeal the motions under all circumstances. The district court credited

Bing’s counsel’s version of the facts, and we cannot say that choice was clearly

erroneous in light of the testimony presented. Anderson v. City of Bessemer City,

470 U.S. 564, 574, 105 S. Ct. 1504, 1511 (1985) (“Where there are two

permissible views of the evidence, the factfinder’s choice between them cannot be

clearly erroneous.”). Accordingly, there is no fair and just reason for allowing



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Bing to withdraw his guilty plea.

      For these reasons, we AFFIRM the district court’s denial of Bing’s motion.




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