                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT            FILED
                       ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                          SEPTEMBER 12, 2005
                             No. 04-15105
                                                           THOMAS K. KAHN
                         Non-Argument Calendar
                                                               CLERK
                       ________________________

                    D. C. Docket No. 03-00219-CR-1-1

UNITED STATES OF AMERICA,


                                                         Plaintiff-Appellee
                                                         Cross-Appellant,

                                   versus

SEDRIC ROSS,

                                                          Defendant-Appellant
                                                          Cross-Appellee.


                       ________________________

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

                           (September 12, 2005)

Before BIRCH, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
      Sedric Ross appeals his conviction and sentence for aiding or assisting in the

preparation and presentation of fraudulent Form 1040 United States Individual

Income Tax Returns to the Internal Revenue Service, in violation of 26 U.S.C.

§ 7206(2). Ross asserts (1) the district court abused its discretion by not allowing

him to withdraw his guilty plea, and (2) the district court violated Blakely v.

Washington, 124 S. Ct. 2531 (2004), by imposing an obstruction-of-justice

enhancement based on judicial findings under a mandatory Guidelines system.

The Government cross-appeals Ross’s sentence arguing the district court

misapplied the tax evasion and relevant conduct Guidelines in calculating Ross’s

base offense level solely on the tax loss attributable to the two counts of the

indictment to which he pled guilty. We affirm Ross’s conviction, but vacate and

remand for resentencing.

                                  I. DISCUSSION

A.    Motion to withdraw guilty plea

      Ross asserts his plea was defective in that he never admitted he intended to

commit the fraud alleged in the indictment. He asserts the district court erred in

failing to conduct an evidentiary hearing on his motion. He further claims his

counsel did not perform effectively. In particular, he claims his attorney was

inexperienced, failed to file suppression motions, did not interview witnesses, did



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not review tax returns, and inaccurately predicted his sentence. Lastly, he argues

his plea was not knowing and voluntary as was evidenced in his plea colloquy.

       We will disturb a district court’s decision to deny a defendant's motion to

withdraw a guilty plea only when it constitutes an abuse of discretion. United

States v. McCarty, 99 F.3d 383, 385 (11th Cir. 1996). 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” where applied to pre-sentence motions. McCarty, 99 F.3d at 385.

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

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 a guilty

plea] 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, “the 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




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government would be prejudiced if the defendant were allowed to withdraw his

plea.” Id. (internal citation omitted).

       1.      Whether the district court erred when it failed to conduct an
               evidentiary hearing on Ross’s motion to withdraw his guilty plea.

       A district court's refusal to hold an evidentiary hearing does not amount to

abuse of discretion when the court has conducted extensive Rule 11 inquiries prior

to accepting a guilty plea. United States v. Stitzer, 785 F.2d 1506, 1514 (11th Cir.

1986). An evidentiary hearing is required when a defendant’s factual allegations

of circumstances undermining his plea are not contradicted in the record. United

States v. Dabdoub-Diaz, 599 F.2d 96, 100 (5th Cir. 1979) (internal citations

omitted).1 However, a hearing is not necessary if the defendant only seeks to

“relitigate representations made by himself, his lawyer, and the prosecutor in open

court.” Id.

       During the plea hearing, the court inquired as to Ross’s mental state. He

replied that he was suffering from nervousness, but nothing beyond what would be

expected at such a time. The Government informed him at the hearing as to the

nature of the charges, that he willfully and intentionally provided false information

on tax returns, and the court informed him of the consequences of pleading to a


       1
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close
of business on September 30, 1981.

                                                4
felony, the rights he was waiving, and the maximum sentence he faced under the

statute. The court also informed him that it would apply the Guidelines and that a

difference between a predicted sentence and the sentence he would receive would

not be an excuse to withdraw his plea.

        The district court’s Rule 11 inquiry was sufficient in respect to all areas in

which Ross has claimed error.2 Ross’s allegations concern matters surrounding his

counsel’s performance, the maximum penalty he faced , and the nature of the

charges. These allegations are contradicted by his testimony at the plea colloquy.

As the district court conducted a sufficient Rule 11 inquiry in that regard, it did not

abuse its discretion in failing to hold an evidentiary hearing.

        2.      Whether the district court erred in finding Ross had not been denied
                close assistance of counsel

        Ross admitted at his plea colloquy that he had the close assistance of

counsel. “There is a strong presumption that the 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).



        2
         The district court did not inquire as to whether Ross was pleading guilty as a result of threats
or promises, other than those contained in the plea agreement. However, Ross did not aver in his
affidavits, or argue in this brief to this court that such promises or threats occurred. Accordingly,
this issue is abandoned. United States v. Dockery, 401 F.3d 1261, 1262–63 (11th Cir. 2005).

                                                   5
      Ross’s mere allegations he did not enjoy the close assistance of counsel do

little to show in what way his counsel’s failures affected his case. Counsel that is

merely inexperienced is not automatically ineffective. Chandler v. United States,

218 F.3d 1305, 1316 n.18 (11th Cir. 2000) (en banc) (citing United States v.

Cronic, 104 S. Ct. 2039, 2050 (1984)). Ross asserts his counsel should have

sought to suppress evidence seized from his office, but does not assert under what

theory that evidence warranted suppression. He further claims his counsel had

made an inaccurate prediction as to his sentence, however, the district court warned

Ross not to rely on any predictions as he could not withdraw his plea simply

because his actual sentence is more severe than anticipated. With regard to Ross’s

other allegations of incompetence, the district court was within its authority to

discredit any allegations that Ross’s counsel was ineffective which were contrary

to the statements he made under oath at the plea hearing. See United States v.

Freixas, 332 F.3d 1314, 1319 (11th Cir. 2003).

      3.     Whether the district court erred in finding that Ross's plea was
             knowing and voluntary

      The thrust of Ross's argument, other than his counsel was deficient, is that

his responses during the plea colloquy to the factual basis demonstrate a lack of

understanding and thus, his plea was “unknowing.” Rule 11 of the Federal Rules

of Criminal Procedure requires the district court to make certain a defendant’s plea

                                           6
was made knowingly and voluntarily. Ross admitted to the facts which formed the

basis of counts four and five of the indictment, to which he was pleading guilty.

He contested his involvement in the facts that formed the basis of the remaining

offenses for which the Government contended he was responsible. The court did

not err in finding that while the resolution of the facts would be germane at

sentencing, it did not affect the validity of the plea by undermining the factual

basis because he was not pleading guilty to these offenses. Admitting to the

factual basis with regard to counts four and five, but denying the factual basis with

regard to the rest of the fraud offenses would be reasonable of a defendant who did

not wish to admit to any offenses beyond those to which he was pleading guilty,

especially if he was raising a Blakely challenge.

      Ross testified his counsel had briefly discussed how the Guidelines applied

to his sentence. He also acknowledged his understanding of the statutory

maximum for each count, as well as how the Guidelines would operate. However,

he was not provided with specific sentence ranges. There is a strong presumption

that Ross's acknowledgment of his understanding and his statements as to his

communications with the attorneys are true. See Medlock, 12 F.3d at 187. On

appeal, Ross has done little to challenge the truth of these statements.




                                           7
      Ross did not seek to withdraw his plea until well after he pled guilty and

shortly before sentencing. “ The longer the delay between the entry of the plea and

the motion to withdraw it, the more substantial the reasons must be as to why the

defendant seeks withdrawal.” Buckles, 843 F.2d at 473 (citations omitted). In

light of the plea colloquy, and the length of time between the entry of the plea and

Pearson's motion to withdraw it, the district court's decision was not an abuse of

discretion.

B.    Tax evasion and relevant conduct guidelines

      The Government asserts the district court missapplied the tax evasion and

relevant conduct Guidelines. “We review the district court's application of the

Sentencing Guidelines de novo, and its findings of fact for clear error.” United

States v. Patti, 337 F.3d 1317, 1323 (11th Cir. 2003) (quotation marks and citation

omitted). The standards for reviewing the application of the Guidelines before the

United States v. Booker, 125 S. Ct. 738 (2005), decision apply after Booker as well.

United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005). “A sentencing

court under Booker still must consider the Guidelines, and, such consideration

necessarily requires the sentencing court to calculate the Guidelines sentencing

range in the same manner as before Booker.” Id. at 1178–79.




                                          8
      A defendant who is found guilty of aiding in tax fraud that results in tax loss

in excess of $5,000 has a base offense level of 9. U.S.S.G. § 2T4.1.3 However, if

that fraud results in a tax loss of over $555,000, he has a base offense level of 18.

Id. Tax loss, for purposes of § 2T1.4, is “the total amount of loss that was the

object of the offense (i.e., the loss that would have resulted had the offense been

successfully completed.)” U.S.S.G. § 2T1.1(c)(1). The Guidelines commentary

directs a district court to "make a reasonable estimate based on the available facts."

U.S.S.G. § 2T1.1, comment. (n.1). “In determining the total tax loss attributable to

the offense (see § 1B1.3(a)(2)), all conduct violating the tax laws should be

considered as part of the same course of conduct or common scheme or plan unless

the evidence demonstrates that the conduct is clearly unrelated.” U.S.S.G. § 2T1.1,

comment (n.2). Conduct that can be considered part of the same course of conduct

can include a “continuing pattern of violations of the tax laws by the defendant.”

Id.

      The alleged victim in all the cases of fraud was the IRS. The methods

asserted to carry out this fraud related to making false claims with regard to

taxpayer status, dependents, and Schedule A and C figures. This constitutes a

common scheme or plan as though it relates to separate taxpayers and returns, the



      3
          Ross was sentenced using the November 1, 1997 version of the Sentencing Guidelines.

                                              9
IRS is a common victim and there is a similar modus operandi. U.S.S.G. § 1B1.3,

comment (n.9(a)). The district court's finding that his conduct with regard to the

other tax fraud is not in the same common scheme as counts four and five of the

indictment is clearly erroneous. As the Guidelines were incorrectly applied,

remand is appropriate. Crawford, 407 F.3d at 1179 (holding the district court’s

misinterpretation of the Guidelines “effectively means that the district court has not

properly consulted the Guidelines”) (citation omitted).

                                II. CONCLUSION

      We affirm Ross’s conviction, but vacate and remand for resentencing. Since

Ross is being resentenced because of an incorrect application of the Guidelines, we

do not address his Booker argument. On remand, the district court should

resentence consistent with Booker, considering the Guidelines advisory range and

“other statutory concerns as well, see [18 U.S.C.] § 3553(a) (Supp. 2004).”

Booker, 125 S. Ct. at 757.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




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