                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               JUNE 18, 2008
                               No. 07-14429                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                    D. C. Docket No. 05-00033-CR-1-MMP

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

MARK KIRKSEY,

                                                           Defendant-Appellant.


                         ________________________

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

                                (June 18, 2008)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Pursuant to a plea agreement, Mark Kirksey pled guilty to conspiring to
manufacture, distribute, and possess with intent to distribute cocaine, in violation

of 21 U.S.C. § 846. The plea agreement contained the following provision:

             If, in the sole discretion of the United States Attorney,
             Mark Kirksey is deemed to have provided substantial
             assistance in the investigation or prosecution of other
             persons who have committed offenses, if Mark Kirksey
             has otherwise complied with all terms of this agreement,
             and if this assistance is prior to sentencing . . . then the
             United States Attorney will file a substantial assistance
             motion. Determination whether the defendant has
             provided substantial assistance will not depend on
             charges being filed or convictions being obtained as a
             result of defendant’s cooperation.

      In entertaining Kirksey’s guilty plea, the district court informed Kirksey that

the charge carried a mandatory sentence of life imprisonment, explained that the

Government, in its discretion, could move the court to impose a lesser sentence,

and asked him if he understood this. Kirksey said that he did. In addition, both he

and his attorney assured the court that no promises other than those contained in

the plea agreement had been made by the Government or anyone else.

      At a hearing held to select a date for sentencing, the prosecutor stated that

the Government did not intend to file a substantial assistance motion at sentencing.

Six days later, Kirksey moved the court for leave to withdraw his guilty plea. He

asserted that his plea had been based on his understanding that the Government

would file a substantial assistance motion at sentencing and that “his counsel and



                                           2
the Government had reached a plea deal whereby [he] would receive a ‘substantial

assistance’ sentencing reduction in exchange for his prior assistance, as well as his

plea of guilty.”

       The district court held a hearing on the motion to withdraw at which Kirksey

and his lawyer testified.1 After considering this testimony and argument of

counsel, the court, on September 4, 2007, entered a seven-page order denying

Kirksey’s motion. Record, Vol. 1 at 292. The court denied the motion because, as

stated in the order, Kirksey had received close assistance of counsel, understood

the nature of his guilty plea, and the Government never promised to file a

substantial assistance motion. Rather, defense counsel simply told Kirksey that

he, counsel, “believed that [Kirksey] had done enough to earn a 5K1” . . . but had

to plead guilty to get one. Id. at 7.

       At the subsequent sentencing hearing, the Government did not file a

substantial assistance motion, and the district court therefore sentenced Kirksey to

life imprisonment. He now appeals, contending that the court abused its discretion

in denying his motion to withdraw.

       We review a district court’s decision denying a motion to withdraw a guilty

plea for abuse of discretion. United States v. Brehm, 442 F.3d 1291, 1298 (11th


       1
        The gist of their testimony is set out in the court’s seven-page order denying Kirksey’s
motion. Record, Vol. 1 at 292.

                                                3
Cir.), cert. denied, 127 S. Ct. 457 (2006). Prior to sentencing, a defendant may

withdraw a plea of guilty if he “can show a fair and just reason for requesting the

withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). When deciding whether the defendant

has shown a fair and just reason for withdrawal, 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.” United States v.

Buckles, 843 F.2d 469, 471-72 (11th Cir. 1988). If, as here, the defendant has not

introduced evidence sufficient to carry the day on the first two of these four issues,

we need not “give particular attention” to the last two. United States v. Gonzalez-

Mercado, 808 F.2d 796, 801 (11th Cir. 1987).

      We find no abuse of discretion in this case. As the district court properly

found in its September 4, 2007 order, Kirksey pled guilty knowingly and

voluntarily and with the benefit of close counsel. Moreover, he failed to establish a

fair and just reason for the withdrawal.

      AFFIRMED.




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