                                                                      [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS
                       FOR THE ELEVENTH CIRCUIT
                                                                                  FILED
                          -------------------------------------------U.S. COURT OF APPEALS
                                       No. 04-13646                    ELEVENTH CIRCUIT
                                 Non-Argument Calendar                     MAY 23, 2006
                         -------------------------------------------- THOMAS K. KAHN
                                                                              CLERK
                         D.C. Docket No. 03-20226-CR-JIC

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                           versus

FABIAN LENNOX JOHNSON,
a.k.a. Quinn Jeffery Johnson,



                                                          Defendant-Appellant.

               ----------------------------------------------------------------
                    Appeal from the United States District Court
                        for the Southern District of Florida
               ----------------------------------------------------------------
                                    (May 23, 2006)

Before EDMONDSON, Chief Judge, DUBINA and HULL, Circuit Judges.


PER CURIAM:

      Defendant-Appellant Fabian Johnson appeals his cocaine conspiracy

conviction after his plea of guilty. Johnson contends the district court erred by
denying his request for leave to withdraw his guilty plea. No reversible error has

been shown; we affirm.

      Johnson pleaded guilty pursuant to a written plea agreement to conspiracy

to possess with intent to distribute five kilograms or more of cocaine, in violation

of 21 U.S.C. § 846. At the Rule 11 proceedings held on 7 November 2004, among

other things, Johnson told the court that he had discussed the application of the

Sentencing Guidelines to his case with his lawyer, he acknowledged his

understanding of the minimum and maximum statutory penalties, and he

recognized that no guideline sentence could be determined until a PSI was

prepared. Johnson was also advised that both he and the government would have

an opportunity to challenge the PSI, and that the sentencing court could, in some

circumstances, impose sentence above or below the guidelines range.

      After Johnson’s plea was accepted by the district court but before Johnson

was sentenced, the Supreme Court issued its opinion in Blakely v. Washington,

124 S.Ct. 2531 (2004). At his sentencing hearing, Johnson argued that the

sentencing court should apply Blakely to Johnson’s sentencing and calculate

Johnson’s guideline sentencing range only on facts included in the indictment. If

the sentencing court was unwilling to apply Blakely in this manner, Johnson

requested leave to withdraw his guilty plea. The sentencing court denied the

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request: when Johnson entered his plea he understood that judicial fact-finding

would be determinative of the sentence imposed; Johnson was not misled.

      Johnson filed an appeal raising two challenges to his sentence and also

claiming that the district court should have allowed him to withdraw his plea. The

government moved to dismiss the appeal based on a valid sentence appeal waiver

in his plea agreement. Based on the appeal waiver, by order of 24 August 2005,

we dismissed issues challenging the imposition of sentence. Even though Johnson

sought to withdraw his guilty plea based on a sentencing issue, the waiver of the

right to appeal “any sentence imposed” has no application to the denial of

Johnson’s request to withdraw his guilty plea; the plea withdrawal issue is distinct

from the calculation of sentence or the manner in which sentence was imposed.

See United States v. Copeland, 381 F.3d 1101, 1104-05 (11th Cir. 2004) (waiver of

right to appeal “any sentence imposed” did not preclude appeal of issue claiming

government breach of plea agreement). Johnson did not waive his right to appeal

the denial of his request to withdraw his plea.

      We review the denial of a request to withdraw a guilty plea for an abuse of

discretion. United States v. Najjar, 283 F.3d 1306, 1307 (11th Cir. 2002). We will

reverse the district court under this standard only if its decision is “arbitrary and

unreasonable.” Id. After a guilty plea has been accepted but before sentence

                                           3
imposed, the guilty plea may be withdrawn if “the defendant can show a fair and

just reason for requesting the withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). And,

when considering whether a defendant advances 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.

Najjar, 283 F.3d at 1309 (quotation and citation omitted).

      In support of his contention that the district court abused its discretion,

Johnson cites no infirmity in the Rule 11 proceedings or the court’s acceptance of

his plea. Johnson makes no reference to the factors that are dispositive of this

issue. Instead, he says only that “the decision in Blakely has effected an enormous

change with regard to sentencing procedures,” and that his request was not

frivolous in the light of Blakely. But “a voluntary plea of guilty intelligently made

in the light of the then applicable law does not become vulnerable because later

judicial decisions indicate that the plea rested on a faulty premise.” Brady v.

United States, 90 S.Ct. 1463, 1473 (1970). Johnson sought to withdraw his plea

to take advantage of the possibility of a more lenient sentence. Johnson was

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sentenced under the guidelines in the manner he expected when he entered his

plea. Absent an infirmity in the plea, a district court commits no abuse of

discretion when, as here, permission to withdraw is refused to a defendant who

seeks to take advantage of intervening changes in federal sentencing law.

      The government’s motion to dismiss Johnson’s appeal of the denial of his

request to withdraw his plea based on the sentence appeal waiver is DENIED;

Johnson’s conviction is AFFIRMED.




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