                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT            FILED
                       ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 07-15549                   MAR 20, 2009
                         Non-Argument Calendar            THOMAS K. KAHN
                                                              CLERK
                       ________________________

                   D. C. Docket No. 04-60046-CR-JAG

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

RAYMOND GEORGE BOHNING,

                                                         Defendant-Appellant.


                       ________________________

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

                             (March 20, 2009)

Before TJOFLAT, DUBINA and FAY, Circuit Judges.

PER CURIAM:
       Raymond George Bohning appeals his convictions for (1) enticing a minor

to engage in sexually explicit conduct for the purpose of producing visual

depictions to transport in interstate commerce, in violation of 18 U.S.C. §§ 2251(a)

and (e) and 2256; (2) using the Internet to entice a minor to engage in sexual

conduct made illegal by Florida law, in violation of 18 U.S.C. § 2422(b);

(3) possessing child pornography, in violation of § 2252A(a)(5)(B) and (b)(2); and

(4) transporting to a minor sexually explicit images for the purpose of enticing the

minor to engage in sexually explicit conduct, in violation of § 2252A(a)(6)(C) and

(b)(1). Bohning argues that the government’s notice of lis pendens on his only

asset, his residence, violated his Sixth Amendment right to counsel by preventing

him from retaining private counsel and that the district court’s failure to hold a

hearing regarding the notice violated his Fifth Amendment right to due process.

Bohning also argues that the district court abused its discretion in denying his

motion to withdraw his guilty plea, as he had not received close assistance of

counsel and did not knowingly and voluntarily plead guilty. For the reasons set

forth below, we affirm.

                                       I. Lis Pendens1


       1
        As an initial matter, on appeal, Bohning points out that his plea agreement contained an
appeal waiver and offers reasons why the waiver should not preclude his instant arguments.
Bohning’s argument is unnecessary, as the appeal waiver contained in his plea agreement was a
sentence appeal waiver and he does not now seek to appeal his sentence

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      In the indictment, the grand jury charged that Bohning must forfeit any

property used to commit or promote the commission of the charged offenses.

Bohning was appointed a federal public defender. The government filed a bill of

particulars, indicating that it would seek forfeiture of Bohning’s residence.

Accordingly, pursuant to Florida law, the government filed a notice of lis pendens

on Bohning’s residence, notifying prospective buyers or recipients of the property

that the government claimed an interest in the property. Subsequently, the

property was sold, and the government filed a notice discharging the lis pendens

and a motion to deposit the proceeds of the sale in the district court’s registry to

await the disposition of the forfeiture proceedings. The district court granted the

motion. Ultimately, at sentencing, the district court denied forfeiture of the

residence.

      In United States v. Register, 182 F.3d 820, 834, 837 (11th Cir. 1999), we

considered and rejected the argument now raised by Bohning. In that case, the

defendant argued that the government’s filing of a lis pendens on his only assets,

two pieces of property, violated his Sixth Amendment right to use his assets to hire

an attorney of his choice to represent him and his Fifth Amendment right to due

process as a person with an interest in property it seized. Id. at 834. Specifically,

as to the Fifth Amendment, the defendant argued that he was entitled to a “hearing



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to determine whether the government had probable cause to demand forfeiture.”

Id.

       With regard to the Sixth Amendment argument, we reasoned that, although a

defendant has a right to hire counsel of his choice, he does not have a right to

spend money not rightfully his to do so. Id. at 834-35 (citing Caplin & Drysdale,

Chartered v. United States, 491 U.S. 617, 631, 109 S.Ct. 2646, 2655, 105 L.Ed.2d

528 (1989) (rejecting an argument that the federal criminal forfeiture statute

violated the Sixth Amendment by failing to provide an exception for assets a

defendant would use to retain an attorney and reasoning that the government’s

interest in “obtaining full recovery of all forfeitable assets . . . overrides any Sixth

Amendment interest in permitting criminals to use assets adjudged forfeitable to

pay for their defense”)). Assets “subject to forfeiture” do not rightfully belong to a

defendant and, in that respect, are no different than stolen bank money seized by

the government. Id. (citing United States v. Bissell, 866 F.2d 1343, 1351 (11th

Cir.1989) (“[T]he right to counsel of choice belongs solely to criminal defendants

possessing legitimate, uncontested assets”)).

       With regard to the Fifth Amendment argument, we reasoned that, although a

notice of lis pendens on a defendant’s property is constraining, making it virtually

impossible to sell or mortgage the property because the interest of a purchaser or



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mortgagee would be subject to the eventual outcome of the lawsuit, a lis pendens

does not constitute a “seizure” because the defendant retains the “right to alienate

the property.” Id. at 836. Therefore, a notice of lis pendens does not affect the

defendant’s property interests “to an extent significant enough to implicate the Due

Process Clause of the Fifth Amendment.” Id. at 837.

      Given our reasoning in Register, Bohning did not have a right to use the

proceeds of the sale of his residence to retain private counsel because the residence

was subject to forfeiture and, therefore, not rightfully his. See Register, 182 F.3d

at 834-35. That the district court ultimately denied forfeiture of the residence does

not affect this conclusion. See id. at 834. Therefore, the government and district

court did not violate Bohning’s Sixth Amendment right to counsel. See id. Also,

Bohning was not entitled to a hearing with regard to the lis pendens on his

residence, as it did not constitute a seizure. See id. at 836-37. Therefore, the

district court did not violate Bohning’s Fifth Amendment right to due process. See

id. Accordingly, we affirm as to this issue.

                                   II. Guilty Plea

      With the aid of his court-appointed counsel, Bohning pled guilty through a

plea agreement. At a change-of-plea hearing, Bohning indicated that he had had

sufficient time to discuss with his counsel the matter of pleading guilty, was “very



                                           5
much” satisfied with his counsel and her representation, and had read the plea

agreement and discussed its contents “extensively” with his counsel before signing

it. Also, he understood the terms of the plea agreement, including the full panoply

of rights that he was giving up and the possible sentences that he faced, and had no

questions. Likewise, he had heard the government’s factual proffer and agreed

with its substance, if not all of its details. Furthermore, no one had used force,

threats, pressure, or intimidation to cause him to plead guilty; rather, he was

pleading guilty of his own free will.

      Later, Bohning filed a motion to withdraw his guilty plea, asserting that his

guilty plea was not knowing and voluntary because he was given only “a few

hours” to decide whether to accept the government’s plea offer and, thus, was not

given sufficient time to review its terms or to “fully understand his sentencing

exposure.” He never wanted or intended to plead guilty and his reticence in doing

so was evident at the change-of-plea hearing. He only agreed to plead guilty on his

counsel’s advice and he was not pleased with his counsel’s representation. The

district court denied the motion, reasoning that the totality of the circumstances did

not demonstrate a fair and just reason to withdraw his guilty plea. The district

court ultimately sentenced Bohning to 240 months’ imprisonment.

      We review a district court’s decision to deny a defendant’s motion to



                                           6
withdraw his guilty plea for abuse of discretion. United States v. McCarty, 99 F.3d

383, 385 (11th Cir. 1996). A decision is an abuse of discretion if it is arbitrary or

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

      After the district court accepts his plea, but before he is sentenced, the

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). In United States v.

Buckles, 843 F.2d 469, 472 (11th Cir. 1988), we held that, in determining if the

defendant has met his burden, a district court may consider the totality of the

circumstances surrounding the plea, 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. Specifically regarding the knowing-and-voluntary prong, we have explained

that the district court is obligated at the change-of-plea hearing to address “three

core concerns,” namely whether the (1) plea is free from coercion, (2) defendant

understands the nature of the charges, and (3) defendant knows and understands

the consequences of his guilty plea. United States v. Hernandez-Fraire, 208 F.3d

945, 949 (11th Cir. 2000) (citing Fed.R.Crim.P. 11(b)). We also have held that

“the representations of the defendant ... [at a plea proceeding] as well as any



                                           7
findings made by the judge accepting the plea, constitute a formidable barrier in

any subsequent collateral proceedings” and that “[s]olemn declarations in open

court carry a strong presumption of verity.” Jones v. White, 992 F.2d 1548, 1556

(11th Cir. 1993).

      The district court’s denial of Bohning’s motion to withdraw his guilty plea

was not unreasonable. See Brehm, 442 F.3d at 1298. The parties present no

arguments regarding whether judicial resources would be conserved or the

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

plea. See Buckles, 843 F.2d at 472. The totality of the circumstances suggest that

Bohning received close assistance of counsel, as he stated at the change-of-plea

hearing that he was “very much” satisfied with his counsel and had “extensively”

reviewed the terms of the plea agreement with his counsel. See id. Also, the

totality of the circumstances suggest that Bohning’s plea was knowing and

voluntary, as he stated at the change-of-plea hearing that he had had sufficient time

to review the terms of the plea agreement; understood the terms of the plea

agreement, including the specific rights he was giving up and the possible

sentences he faced; and had not been forced, threatened, or pressured. See

Buckles, 843 F.2d at 472; Hernandez-Fraire, 208 F.3d at 949. Bohning’s

statements deserve a strong presumption of truth. See White, 992 F.2d at 1556.



                                          8
Therefore, the district court did not abuse its discretion. See McCarty, 99 F.3d at

385. Accordingly, we affirm as to this issue.

      AFFIRMED.




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