                                                                        [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                              FILED
                            FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                             ________________________  ELEVENTH CIRCUIT
                                                           JAN 26, 2007
                                                        THOMAS K. KAHN
                                    No. 05-10667
                                                             CLERK
                               ________________________

                       D. C. Docket No. 03-00243-CR-T-23-TBM


UNITED STATES OF AMERICA,

                                                                             Plaintiff-Appellee,

                                             versus

MONKILE M. CLEMMONS,

                                                                         Defendant-Appellant.

                               ________________________

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

                                     (January 26, 2007)

Before ANDERSON and MARCUS, Circuit Judges, and ALTONAGA,* District
Judge.

PER CURIAM:

       *
          Honorable Cecilia M. Altonaga, United States District Judge for the Southern District of
Florida, sitting by designation.
       In this appeal we decide whether the district court abused its discretion in

denying Monkile Clemmons’s motion to withdraw his guilty plea under Federal

Rule of Criminal Procedure 11(d)(2)(B).1 We conclude that it did not.

Accordingly, we affirm the judgment of the district court.

                                                 I.

       On February 19, 2003, a narcotics investigator employed by the

Hillsborough County, Florida, Sheriff’s Office obtained from a Florida circuit

judge a search warrant authorizing the search of Clemmons’s apartment. The

narcotics investigator stated in his supporting affidavit that he had information that

a confidential informant had purchased, in a controlled buy, crack cocaine at

Clemmons’ apartment from a black male known as “Cowboy” sometime between

January 15 and January 25, 2003. Based on that transaction, the investigator stated

that he believed crack cocaine was currently being kept at Clemmons’ apartment,

as of February 19, the date he applied for the warrant. The warrant authorized law

enforcement officials to search the premises for crack cocaine.

       On February 26, officers searched Clemmons’ apartment and found 24.9


       1
         Clemmons asserts for the first time on appeal that the Government violated his due
process rights under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), and that the district
court violated Federal Rule of Criminal Procedure 11(b)(3) by accepting his guilty plea without
ensuring that there was an adequate factual basis for it. After review, we find no plain error and
thus reject these arguments without further discussion.

                                                 2
ounces of crack cocaine and two handguns located underneath his refrigerator.

Clemmons was thereafter arrested and taken into custody for violations of Florida

law.

       On June 18, Clemmons, a convicted felon, was indicted by a federal grand

jury for possession with intent to distribute crack cocaine, in violation of 18 U.S.C.

§ 841(a)(1), and for possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

Represented by Assistant Federal Public Defender Mary Mills, Clemmons was

arraigned on the federal charges on September 2, 2003, at which time he entered a

plea of not guilty. The state charges against him were dropped.

       On October 1, a change-of-plea hearing was held before a magistrate judge.

At that hearing, Clemmons pleaded guilty, without a written plea agreement, to

both the drug charge and the firearm charge. During the comprehensive plea

colloquy, the magistrate judge fully informed Clemmons of the charges against him

and the punishment associated with each. The magistrate judge further explained

to Clemmons the consequences of pleading guilty to a crime. Clemmons stated

that he understood the consequences of his plea. The magistrate judge asked

Clemmons whether he had any complaints about the quality of Mills’s

representation, and Clemmons responded: “No sir.”

       The Government then read into the record the facts upon which Clemmons’

                                          3
guilty plea was based. Clemmons was given an opportunity to correct, challenge,

or add to the recitation of the facts, but did not do so. Clemmons said that pleading

guilty was in his best interest. Following the hearing, the magistrate judge issued a

report recommending that the district judge accept Clemmons’ guilty plea. The

district court accepted Clemmons’ guilty plea in a written order dated October 21.

The district court scheduled Clemmons’ sentencing hearing for January 14, 2005.

      Shortly after entering his plea in October, Clemmons had his mother contact

Mills to indicate that he wanted to withdraw his plea. Mills responded to

Clemmons that she would file a motion to withdraw his plea if that was what he

wanted her to do. The two later met to discuss Clemmons’ pre-sentence

investigative report. At that meeting Clemmons told Mills that he was not satisfied

with her representation and reiterated to her that he wanted to withdraw his plea.

Mills did not file a motion to withdraw on Clemmons’ behalf.

      On January 6, 2005, Clemmons filed a pro se motion asking that Mills be

withdrawn from the case and that the district court appoint him a new attorney.

His motion to substitute counsel was referred to a magistrate judge and, following a

hearing on the matter, was granted. On January 21, the magistrate judge appointed

a new attorney to represent Clemmons at the impending sentencing hearing, which

had been rescheduled from the original date to allow Clemmons’ new attorney time

                                          4
to prepare.

      On April 5, before the sentencing hearing was held, Clemmons’ new attorney

filed a motion to withdraw Clemmons’ guilty plea under Federal Rule of Criminal

Procedure 11(d)(2)(B). On September 16, the district court held an evidentiary

hearing on the motion to withdraw. Clemmons testified at the hearing that he had

asked Mills to investigate whether there were any fingerprints on the guns found

underneath his refrigerator, and that she had informed him that no fingerprint tests

had been conducted on the guns. Despite the assurances he had given the

magistrate judge during the guilty plea colloquy, Clemmons testified at the

withdrawal hearing that he had not been satisfied with Mills’s representation of

him. He testified that he pleaded guilty because he thought it was in his best

interest to do so. Specifically, he thought his chances of receiving a shorter prison

term were better if he pleaded guilty rather than proceeding to trial.

      Mills also testified at the withdrawal hearing. Her testimony confirmed that

she and Clemmons had had a rocky relationship from the outset. Consistent with

Clemmons’ testimony, Mils stated that Clemmons wanted to know early on in the

case whether there were any fingerprints found on the guns. Mills conceded at the

hearing that, initially, she thought that no fingerprint tests had been conducted on

the guns.

                                           5
      Mills testified that, before Clemmons entered his guilty plea, she had

reviewed with him the Government’s evidence in the case, the search warrant, and

the possible defenses to the charged crimes. She also testified that Clemmons

knew, before he decided to plead guilty, that no fingerprints had been found on the

guns. They had discussed that issue. She testified that she had explained to

Clemmons that the lack of fingerprints on the guns had little relevance with regard

to the felon-in-possession charge because of how broadly the term “possession” is

defined by law.

      Mills testified that, while he had expressed some initial reservations about

pleading guilty, Clemmons ultimately informed her that he thought it would be in

his best interest to do so. Mills testified that she did not know that the state judge

who issued the warrant for Clemmons’ apartment had ever been involved as a

confidential informant for any law enforcement agency.

      Mills testified that she discovered for the first time, while discussing

Clemmons’ PSI with him in January 2004, that Clemmons had never received the

report detailing the fingerprint tests conducted on the guns. That report revealed

that no identifiable prints had been found on the guns. Clemmons told Mills that if

he had seen the report before he pleaded guilty he might not have done so.

      On November 17, 2005, the district court entered a written order denying

                                           6
Clemmons’ motion to withdraw. The court concluded that Clemmons was

represented by competent counsel, that his guilty plea was entered knowingly and

voluntarily, and that the legal issues raised in support of his motion were without

merit. This appeal followed.

                                          II.

      A district court may allow a defendant to withdraw his guilty plea before

sentencing if the defendant “can show a fair and just reason for requesting the

withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). We liberally construe this standard,

but note that “there is no absolute right to withdraw a guilty plea before sentence is

imposed.” United States v. Bushert, 997 F.2d 1343, 1355 (11th Cir. 1993). The

matter is committed to the sound discretion of the district court. To determine

whether a defendant has shown a “fair and just” reason for withdrawing his plea,

we look at the totality of the circumstances. See United States v. Buckles, 843 F.2d

469, 479 (11th Cir. 1988). “The good faith, credibility and weight of a defendant’s

assertions in support of a motion under Rule [11(d)(2)(B)] are issues for the trial

court to decide.” Id. “[A] defendant seeking to set aside a guilty plea must at the

very least show that correct information would have made a difference in his

decision to plead guilty.” United States v. Schubert, 728 F.2d 1364, 1365 (11th

Cir. 1984) (citation omitted).

                                          7
      “We review a district court’s denial of a motion to withdraw a guilty plea for

abuse of discretion.” United States v. Najjar, 283 F.3d 1306, 1307 (11th Cir.

2002). “We will reverse a district court’s decision [to deny] a motion to withdraw

only if it is arbitrary or unreasonable.” Id. (citing Bushert, 997 F.2d at 1355).

                                          III.

      Clemmons argues that he should have been permitted to withdraw his guilty

plea for four reasons. He argues on appeal that he would not have pleaded guilty

if, at the time he entered his plea: (1) he had known that one of the guns found

under his refrigerator had been inconclusively linked to a homicide for which he

was not a suspect, (2) he had been given a copy of the report showing the

inconclusive results of the fingerprint tests conducted on the guns, (3) Mills had

told him that the warrant authorizing the search of his apartment might have been

open to challenge under the Fourth Amendment based on the alleged staleness of

the facts contained in the supporting affidavit, and (4) he had known that the state

judge who issued the search warrant had, at some undisclosed time, assisted the

FBI as a confidential informant in connection with an unrelated criminal

investigation.

      We take each of these arguments in turn.

                                          A.

                                           8
      First, Clemmons argues that he should have been permitted to withdraw his

plea because, at the time it was entered, he did not know that law enforcement

authorities suspected that one of the guns found in his apartment was linked to a

homicide for which he was not a suspect. Clemmons argues that if he had known

about the authorities’ suspicions he would not have pleaded guilty, but instead

would have defended the felon-in-possession charge at trial based on the theory

that the perpetrator of the homicide was likely the person who hid the gun under his

refrigerator without his knowledge. After reviewing the record, we conclude that

this speculative assertion does not rise to the level of a nonfrivolous defense. The

record discloses that the report allegedly linking the gun to a previous homicide

was merely inconclusive with regard to such a link. Even assuming, however, that

the gun was directly and conclusively linked to a previous homicide, Clemmons

has come forward with nothing to suggest that the perpetrator of the crime was

anyone who might have had access to his apartment. The notion that some

unknown murder suspect might have come into Clemmons’ apartment and might

have stashed the gun underneath his refrigerator is purely conjectural and finds no

support in the record. The district court did not abuse its discretion in rejecting this

uncolorable argument as a basis for permitting Clemmons to withdraw his plea.

                                          B.

                                           9
      Second, Clemmons argues that he should have been permitted to withdraw

his plea because, at the time it was entered, he had not been given a copy of the

report detailing the inconclusive results of the fingerprint tests conducted on the

guns. The district court, however, following an evidentiary hearing, credited

Mills’s testimony and concluded that Clemmons in fact knew—based on

conversations Mills and Clemmons had before he pleaded guilty—that his

fingerprints had not been found on the guns. The district court’s factual finding on

this issue is supported by the record and is not clearly erroneous. Moreover,

Clemmons concedes in his opening brief that Mills testified that she had told him

“that no useable fingerprints had been recovered from the firearms.” Br. at 24.

Because Clemmons already knew at the time he pleaded guilty that his fingerprints

were not found on the guns, the fact that he did not actually see the report

confirming the absence of fingerprints is irrelevant. Stated differently, we cannot

say that Clemmons’ physical possession of the fingerprint report “would have made

a difference in his decision to plead guilty,” Schubert, 728 F.2d at 1365, because he

was already aware of the findings the report contained. Thus the district court did

not abuse its discretion in rejecting this argument as a basis for permitting

Clemmons to withdraw his plea.

                                          C.

                                          10
      Third, Clemmons suggests on appeal that he would not have pleaded guilty if

he had been informed by Mills, prior to entering his plea, that the warrant giving

rise to the search of his apartment could have been challenged under the Fourth

Amendment based on the alleged staleness of the facts recounted in the supporting

affidavit. We have searched the record and have found no indication by

Clemmons—whether in live testimony at the withdrawal hearing, in an affidavit, or

in any other submission—that his lack of knowledge about a possible staleness

challenge to the warrant played a role in his decision to plead guilty. Thus

Clemmons has not shown that his knowledge of the alleged staleness issue is

“information [that] would have made a difference in his decision to plead guilty.”

Schubert, 728 F.2d at 1365. Because Clemmons “must at the very least,” id., make

such a showing before he is entitled to withdraw his plea, we cannot say that the

district court abused its discretion in rejecting this argument as a basis for granting

Clemmons’ motion to withdraw.

                                          D.

      Finally, Clemmons argues that the Government should have disclosed to

him, before he entered his guilty plea, the state judge’s status as a confidential

informant. Had he known this fact, Clemmons says that Mills could have mounted

a Fourth Amendment challenge to the warrant on the ground that the judge’s

                                          11
participation with law enforcement officials undermined his ability to serve as a

neutral and detached magistrate. However, there is no evidence in the record that

the judge in question was serving as a confidential informant at the time he issued

the warrant for Clemmons’ apartment on February 19, 2003. In fact, the record

discloses nothing about the judge’s involvement as a confidential informant.

Indeed, Clemmons does not even allege that the judge had any law enforcement

involvement with the investigation of his case. We cannot say that the district

court abused its discretion in rejecting as a basis for withdrawal Clemmons’

conclusory assertions on this issue.2

                                               IV.

       For the foregoing reasons, we conclude that the district court did not abuse

its discretion in denying Clemmons’ motion to withdraw his guilty plea under Rule

11(d)(2)(B). The district court’s exercise of discretion was neither arbitrary nor

unreasonable. See Najjar, 283 F.3d at 1307. Accordingly, the judgment of the

district court is




       2
         Even if there were evidence in the record to illuminate Clemmons’ factual allegations
with regard to this issue, we note that Clemmons has made no effort to address how his Fourth
Amendment claim based on the judge’s status as a confidential informant could overcome the
good-faith exception to the exclusionary rule set forth in United States v. Leon, 468 U.S. 897,
104 S. Ct. 3405 (1984).

                                                12
       AFFIRMED.3




       3
          Clemmons also argues that his guilty plea was void ab initio because Mills’
representation of him leading up to the entry of his guilty plea was constitutionally deficient
under the Sixth Amendment. See Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370 (1985)
(ineffective assistance of counsel may be grounds for setting aside a guilty plea). Clemmons
alleges that Mills’ performance was deficient because (1) she failed to file a motion to suppress
based on the staleness of the facts in the search warrant affidavit, (2) she failed to turn over to
him the report concerning the fingerprint test results, and (3) she did not disclose to him the fact
that one of the guns had been inconclusively associated with a homicide. Because we have
rejected these claims as without merit, we likewise reject Clemmons’ independent Sixth
Amendment claim.

                                                  13
