              Case: 12-13807    Date Filed: 09/16/2013   Page: 1 of 8


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-13807
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:11-cr-00238-CG-C-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

FRANK JAMES ABSTON,

                                                              Defendant-Appellant.

                          ________________________

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

                               (September 16, 2013)

Before MARCUS, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

      Frank J. Abston appeals his conviction and life sentence for conspiracy to

possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841 and 846.
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On appeal, Abston argues that: (1) the district court abused its discretion by

denying his motion to withdraw his guilty plea because he demonstrated a fair and

just reason for the withdrawal of his plea, the district court judge should have

recused herself, and the government breached the plea agreement; and (2) the

district court lacked jurisdiction to give him an enhanced sentence of life

imprisonment, because the government failed to timely file and serve the 21 U.S.C.

§ 851(a)(1) enhancement information. After careful review, we affirm. 1

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

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

The district court does not abuse its discretion unless its decision “is arbitrary or

unreasonable.” Id. (quotation omitted). Ordinarily, we review a district judge’s

decision not to recuse herself for abuse of discretion. United States v. Amedeo,

487 F.3d 823, 828 (11th Cir. 2007). However, because Abston failed to seek

recusal of the district judge in the proceedings below, we review for plain error.



1
         Abston’s motion to supplement the record on appeal is GRANTED. Nevertheless, we
DENY the government’s motion to dismiss this appeal based on the appeal waiver in Abston’s
plea agreement. During the plea colloquy, the district court focused only on the sentencing
aspects of the appeal waiver, and the record does not make clear otherwise that Abston
understood the full implication of the appeal waiver. United States v. Bushert, 997 F.2d 1343,
1351 (11th Cir. 1993). In addition, a district court lacks jurisdiction to entertain a § 851
enhancement if the government failed to timely file and serve the information prior to plea or
trial, and this jurisdictional defect is not waivable. Harris v. United States, 149 F.3d 1304, 1306-
09 (11th Cir. 1998). Accordingly, Abston’s appeal waiver does not bar any of his claims on
appeal.


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United States v. Berger, 375 F.3d 1223, 1227 (11th Cir. 2004). 2 Similarly, while

we generally review de novo the question of whether the government breached a

plea agreement, where, as here, a defendant fails to object to an alleged breach

before the district court, we again review only for plain error. United States v.

Romano, 314 F.3d 1279, 1281 (11th Cir. 2002). Finally, while we generally

review the adequacy of a 21 U.S.C. § 851 notice de novo, United States v. Ladson,

643 F.3d 1335, 1341 (11th Cir. 2011), Abston did not object to the sentencing

enhancement before the district court and, once again, we review only for plain

error.    See United States v. Weeks, 711 F.3d 1255, 1261 (11th Cir. 2013)

(providing that we review arguments not raised in the district court for plain error).

         First, we are unpersuaded by Abston’s claim that the district court abused its

discretion in denying his motion to withdraw his guilty plea. A defendant may

withdraw a guilty plea after the district court accepts the plea, but before it imposes

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

withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). In making its decision, the 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)

2
        Under plain-error review, there must be (1) an error, (2) that is plain, and (3) that affects
substantial rights. United States v. Shelton, 400 F.3d 1325, 1328-29 (11th Cir. 2005). If these
three prongs are met, we may exercise our discretion to notice this error if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id. at 1329.
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whether the government would be prejudiced if the defendant were allowed to

withdraw his plea.” Brehm, 442 F.3d at 1298 (quotation omitted). There is a

strong presumption that statements made during a plea colloquy are true. United

States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). The defendant “bears a

heavy burden” to show statements made under oath at a plea colloquy were false.

United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988).

      District court orders generally should contain sufficient explanations of their

rulings so as to provide us with an opportunity to engage in meaningful appellate

review. Danley v. Allen, 480 F.3d 1090, 1091 (11th Cir. 2007). Nevertheless, we

have decided appeals on the merits where the district court did not enter any

findings on the separate factual issues, so long as “a complete understanding of the

issues is possible.” United States v. $242,484.00, 389 F.3d 1149, 1154 (11th Cir.

2004) (en banc) (quotation omitted).

      Here, the district court did not abuse its discretion in denying Abston’s

motion to withdraw his guilty plea. First, during the plea hearing, Abston admitted

that he had discussed the charges against him with his attorney, he understood the

charges in the indictment, and he was fully satisfied with his attorney’s

representation and advice. The plea agreement also provided that Abston had the

benefit of legal counsel in the negotiating of the agreement. In light of this

evidence, Abston had close assistance of counsel. Brehm, 442 F.3d at 1298.


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      Second, Abston has failed to show that his plea was not knowing and

voluntary.   Abston said, under oath, that he had read and discussed the plea

agreement with his attorney and that he understood the terms of the agreement. He

also averred that he did not have any other agreements with the government and

that nobody had made any other promises or assurances to him to induce him to

plead guilty. Abston further understood that the mandatory statutory sentence was

life imprisonment. Abston failed to meet his “heavy burden” of showing that his

statements at the plea hearing were false.

      The third and fourth factors also weigh against Abston. Permitting Abston

to withdraw his plea would require a trial, which would expend judicial resources

rather than conserve them. Moreover, the government likely would be prejudiced

because of the passage of time. Although the district court did not make many

specific findings in denying Abston’s motion to withdraw the guilty plea, its

findings, combined with evidence in the record, support its decision.

      As for Abston’s claim that the district judge should have recused herself sua

sponte from the case, we disagree. Under the statute, a federal judge is instructed

to disqualify herself if “[her] impartiality might reasonably be questioned.” 28

U.S.C. § 455(a). The statute also requires disqualification where, inter alia, a judge

has a “personal bias or prejudice concerning a party, or personal knowledge of

disputed evidentiary facts concerning the proceeding.” Id. § 455(b)(1).


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      Here, even if we were to conclude that the judge plainly erred by not

recusing herself sua sponte from Abston’s sentencing hearing (and we do not), that

error has not affected Abston’s substantial rights.       Abston has not shown a

reasonable probability that a different district court judge would have granted his

motion to withdraw his guilty plea. United States v. Rodriguez, 398 F.3d 1291,

1299 (11th Cir. 2005) (noting that the third prong of the plain error test “almost

always requires that the error must have affected the outcome of the district court

proceedings”) (quotation omitted)). Moreover, because Abston was subject to a

mandatory statutory life sentence, he would not have received a different sentence

with a different judge if his plea was upheld.

      As for Abston’s claim of plain error because the government breached the

plea agreement, we again are unconvinced. To assess whether a plea agreement

was breached, we first must “determine the scope of the government’s promises.”

United States v. Copeland, 381 F.3d 1101, 1105 (11th Cir. 2004). However, a plea

agreement does not preclude the government from disclosing pertinent information

to the sentencing court. United States v. Horsfall, 552 F.3d 1275, 1282-83 (11th

Cir. 2008); United States v. Boatner, 966 F.2d 1575, 1578 (11th Cir. 1992).

       We find no plain error in this claim. First, Abston’s assertion that the

government withdrew the plea agreement, and that this action somehow breached

the plea agreement, lacks merit. After a brief recess during the plea colloquy, the


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parties continued under the same plea agreement. Second, as set forth in the

agreement itself, the government was entitled to disclose pertinent information to

the sentencing court, including evidence of the amount of crack cocaine that was

attributable to Abston. Finally, the plea agreement did not prevent the government

from advocating against the acceptance of responsibility credit based on Abston’s

post-plea behavior, and moreover, the government was entitled to allocute under

the agreement. In any event, even if the government breached the plea agreement,

it did not affect Abston’s substantial rights, because any breach did not affect his

sentence. See Puckett v. United States, 556 U.S. 129, 142 n.4 (2009) (holding that

the effect of an alleged plea agreement breach on a defendant’s substantial rights

does not depend on whether the defendant would have entered into the plea, but

whether his sentence was affected by the government’s breach). Regardless of the

government’s actions, Abston was subject to a mandatory, statutory life sentence.

      We also find no merit in Abston’s claim that the district court lacked

jurisdiction to give him an enhanced sentence of life imprisonment.            Section

851(a)(1) provides, in pertinent part:

      No person who stands convicted of an offense under this part shall be
      sentenced to increased punishment by reason of one or more prior
      convictions, unless before trial, or before entry of a plea of guilty, the United
      States attorney files an information with the court (and serves a copy of such
      information on the person or counsel for the person) stating in writing the
      previous convictions to be relied upon.



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21 U.S.C. § 851(a)(1). We have “unambiguously and repeatedly held that a district

court lacks jurisdiction to enhance a sentence unless the government strictly

complies with the procedural requirements of § 851(a).” Harris, 149 F.3d at 1306.

       In this case, consistent with the record and course of the plea hearing, the

government timely filed and served its § 851(a)(1) information. According to the

Notice of Electronic Filing generated by the CM/ECF system, the government filed

the information at 8:57 a.m. on November 21, 2011.                       The information was

electronically mailed at the same time to Abston’s attorney. Abston did not enter

his guilty plea until after 10:00 a.m. on the same day. Therefore, the government

strictly complied with § 851(a)(1)’s requirements, and the district court had

jurisdiction to sentence Abston to life imprisonment.

       Accordingly, we affirm Abston’s conviction and sentence. 3

       AFFIRMED.




3
         Following briefing, Abston submitted supplemental authority to this Court, arguing, for
the first time, that the indictment failed to include the amount of crack cocaine that he was found
responsible for, and thus, his case should be reversed and remanded. He relies on the U.S.
Supreme Court’s recent decision in Alleyne v. United States, 133 S.Ct. 2151 (2013). Abston did
not raise this issue in his initial brief, however, and thus, he has abandoned it. United States v.
Nealy, 232 F.3d 825, 830 (11th Cir. 2000) (holding that parties cannot properly raise new issues
at supplemental briefing, even if the issues arise based on the intervening decisions or new
developments cited in the supplemental authority).
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