                                                          [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________            FILED
                                                    U.S. COURT OF APPEALS
                                 No. 11-12105         ELEVENTH CIRCUIT
                             Non-Argument Calendar        JUNE 27, 2012
                           ________________________        JOHN LEY
                                                            CLERK
                     D.C. Docket No. 1:06-cr-00278-KD-C-1

UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                         versus

DAVID MARK YOUNG,

                                                    Defendant-Appellant.

                         ___________________________

                   Appeal from the United States District Court
                      for the Southern District of Alabama
                       ____________________________

                                  (June 27, 2012)

Before MARCUS, JORDAN, and BLACK, Circuit Judges.

PER CURIAM:

      David Young appeals from the district court’s denial of his motion to withdraw

his guilty plea. After review of the record and the parties’ briefs, we conclude that
the district court did not abuse its discretion, and therefore affirm.

                                                I

       On December 22, 2009, pursuant to a written plea agreement, see R1:43, Mr.

Young pled guilty to a charge of conspiring to possess marijuana with the intent to

distribute. See 21 U.S.C. § 846. The plea agreement explained (in bold typeface) that

Mr. Young’s statutory minimum sentence was 10 years, rather than 5 years, due to an

information the government had filed pursuant to 21 U.S.C. § 851(a). See R1:43 at

3 ¶ 10.1 The plea agreement also provided that Mr. Young agreed to cooperate with

the government, and that the government retained sole discretion to decide whether

to seek a reduction in Mr. Young’s sentence for substantial assistance:

       If Defendant provides full, complete, and truthful cooperation to the
       United States, and if his cooperation results in substantial assistance to
       the United States in the investigation or prosecution of another person
       who has committed an offense, the United States Attorney’s Office for
       the Southern District of Alabama agrees to move for a downward
       departure pursuant to U.S.S.G. § 5K1.1 or to file a motion pursuant to
       Rule 35 of the Fed.R.Crim.P. The [D]efendant acknowledges that the
       determination of whether or not he has provided substantial assistance
       will be made solely by the United States Attorney’s Office for the
       Southern District of Alabama.

       Defendant acknowledges and fully understands that this plea
       agreement does not contain a promise by the United States to move


       1
        The information alleged that Mr. Young was subject to increased statutory penalties
because he was convicted in 1991 of conspiracy to possess marijuana with the intent to distribute
in the Southern District of Alabama. See R1:32.

                                                2
       for a § 5k1.1 downward departure or to file a Rule 35 motion.

See id. at 7 ¶¶ 19.7 & 19.8 (bold typeface and underlining in original). The district

court explained the government’s discretion to Mr. Young at his change of plea

hearing. See R1:116 at 5 (“And you understand when I say ‘10-year minimum

mandatory’, I am required to give you 10 years, unless the United States Attorney’s

Office files a motion asking that I go below that. Do you understand that? . . . . And

it’s up for them to decide whether you have substantially assisted them. Do you

understand that?”). The district court again explained the 10-year mandatory

minimum sentence and the government’s discretion with respect to a downward

departure motion at a sealed hearing on November 10, 2010. See R1:126 at 6-7.

       On March 22, 2011, prior to his sentencing hearing, Mr. Young filed a motion

to withdraw his guilty plea, asserting that he had a “fair and just reason” for

withdrawal under Rule 11(d)(2)(B) of the Federal Rules of Criminal Procedure.

According to Mr. Young, after his second debriefing by agents – which took place

after the entry of the guilty plea – the prosecutor advised his counsel that the

government would not be filing a motion for a downward departure because the

information provided by Mr. Young was “stale.”2 Because he had been debriefed


       2
         At the sentencing hearing, the government explained that Mr. Young had been a fugitive
for a period of time. By 2010-11, therefore, the government was already aware of some of the
2005 information provided by Mr. Young. See R1:117 at 25-27.

                                               3
prior to the entry of his guilty plea by other agents who had since been reassigned,

Mr. Young claimed that the government knew or should have known at the time of

the plea that his efforts at cooperation would be futile. See R1:79 at 1-3.

      The government opposed the motion. Essentially, the government argued that

Mr. Young could not withdraw his guilty plea due to its decision not to file a motion

for a downward departure because the plea agreement did not guarantee that the

government would ever file such a motion. The government also asserted that Mr.

Young’s plea was knowing and voluntary. See R1:84 at 8-11.

      On April 7, 2011, the district court, without holding an evidentiary hearing,

denied Mr. Young’s motion “for the reasons stated” in the government’s response.

See R1:94. On April 15, 2011, the district court sentenced Mr. Young to the 10-year

statutory minimum sentence. See R1:117 at 30.

                                          II

      We review the district court’s denial of Mr. Young’s motion to withdraw the

guilty plea for abuse of discretion. See United States v. Freixas, 332 F.3d 1314, 1316

(11th Cir. 2003). “There is no abuse of discretion unless the denial is ‘arbitrary or

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

(citation omitted).

      Though pre-sentencing motions to withdraw a guilty plea are liberally

                                          4
construed, there is no absolute right to withdrawal of a plea. See United States v.

McCarty, 99 F.3d 383, 385 (11th Cir. 1996). In reviewing a motion like Mr. Young’s,

a district court should consider the “totality of the circumstances,” including a

number of factors: whether close assistance of counsel was available; whether the

plea was knowing and voluntary; whether judicial resources would be conserved; and

whether the government would be prejudiced if the defendant were allowed to

withdraw his guilty plea. See United States v. Buckles, 843 F.2d 469, 471-72 (11th

Cir. 1988). The defendant has the burden of showing a fair and just reason for

withdrawal, and “[t]he 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

resolve.” Id.

      On this record, Mr. Young has not shown an abuse of discretion. First, the plea

agreement advised Mr. Young that there was no guarantee or promise of a motion for

a downward departure, and that the government had sole discretion in deciding

whether to file a motion for a downward departure. Second, the district court

explained the government’s discretion to Mr. Young at the change of plea hearing

and at a sealed hearing prior to sentencing. Third, the mere fact that the government

believed Mr. Young’s information to be “stale” after the change of plea hearing does

not mean that it entered into the plea agreement in bad faith. Indeed, at sentencing

                                          5
the prosecutor explained to the district court that Mr. Young could have provided or

did provide some information as to a co-defendant who remained a fugitive, but that

information had not yet led to an arrest. See R1:117 at 26. And both Mr. Young’s

counsel (at a sealed hearing prior to sentencing) and the prosecutor (at the sentencing

hearing) told the district court that Mr. Young had refused to be debriefed a third time

following the entry of the guilty plea. See R1:137 at 2-3; R1:117 at 27. The

government’s willingness to meet with Mr. Young again is evidence that the

cooperation agreement was not an empty promise. Fourth, there was no claim that

Mr. Young did not have the close assistance of counsel when he pled guilty, and as

a result the factors dealing with conservation of judicial resources and prejudice to

the government matter less. See United States v. Gonzalez-Mercado, 808 F.2d 796,

802 (11th Cir. 1987). Fifth, Mr. Young filed his motion to withdraw the guilty plea

about 15 months after he pled guilty. That length of time is not dispositive, but it is

a factor, for “[t]he 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.

      Mr. Young also argues that the district court erred by simply adopting the

government’s response and not discussing the factors set out in our cases. It would

have been better, of course, for the district court to issue an order articulating its own

                                            6
reasons for the denial, but the order here is sufficient, given the record, for

meaningful appellate review. See Gonzalez-Mercado, 808 F.2d at 798-801 (“[W]hile

the district court unfortunately did not state its reasoning for denying the withdrawal,

there is sufficient evidence in the record to support a finding that appellant’s plea was

knowing and voluntary.”).

                                           III

      The district court’s denial of Mr. Young’s motion to withdraw the guilty plea

is affirmed.

      AFFIRMED.




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