              Case: 15-15189    Date Filed: 12/27/2016   Page: 1 of 7


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 15-15189
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 6:14-cr-00232-CEM-KRS-1



UNITED STATES OF AMERICA,
                                                                  Plaintiff-Appellee,

                                      versus

KYLE JENNINGS,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                               (December 27, 2016)

Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      Kyle Jennings appealed his conviction after pleading guilty to receipt of

child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1).
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Specifically, he argued that the district court abused its discretion in denying

Jennings’s motion to withdraw or set aside his plea because a sufficient factual

basis did not support the plea and he did not knowingly and voluntarily enter into

the plea.

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

for an abuse of discretion. United States v. Symington, 781 F.3d 1308, 1312 (11th

Cir. 2015). The district did not abuse its discretion unless its decision was

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

2006) (quotation omitted). The defendant-movant carried the burden on a motion

to withdraw a guilty plea. A defendant seeking to withdraw a guilty plea after its

acceptance but prior to sentencing must demonstrate a “fair and just reason” for

doing so. Fed. R. Crim. P. 11(d)(2)(B).

      In determining whether a defendant met his burden of showing a “fair and

just reason” to withdraw a guilty plea, a district court may consider the totality of

circumstances surrounding the plea, including whether: (1) the close assistance of

counsel was available, (2) the plea was knowing and voluntary, (3) judicial

resources would be conserved, and (4) the government would be prejudiced if the

defendant were allowed to withdraw his guilty plea. United States v. Buckles, 843

F.2d 469, 471–72 (11th Cir. 1988). However, the district court needed not find

prejudice to the government before denying a defendant’s motion to withdraw. Id.


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at 474. An appellant’s failure to satisfy the first two factors of the Buckles analysis

rendered analyzing the remaining factors unnecessary. See United States v.

Gonzalez-Mercado, 808 F.2d 796, 801 (11th Cir. 1987) (affirming a district court’s

denial of a motion to withdraw a guilty plea based on the first two factors, but

declining to give “considerable weight” to the third factor or “particular attention”

to the possibility of prejudice to the government”).

      In determining whether a plea was knowing and voluntary, the district court

must ensure compliance with the core concerns of Fed. R. Crim. P. 11, including

that the defendant: “(1) enter[ed] his guilty plea free from coercion, (2)

underst[ood] the nature of the charges, and (3) underst[ood] the consequences of

his plea.” United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005).

Additionally, the “good faith, credibility, and weight of a defendant’s assertions in

support of a motion to withdraw a guilty plea [we]re issues for the trial court to

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

Statements made under oath by a defendant during a plea colloquy received a

strong presumption of truthfulness. United States v. Medlock, 12 F.3d 185, 187

(11th Cir. 1994). Consequently, a defendant bore “a heavy burden” to show that

his statements under oath were false. United States v. Rogers, 848 F.2d 166, 168

(11th Cir. 1988).




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      We have also noted that “the timing of [an] appellant’s motion to withdraw

also deserves … consideration.” Gonzalez Mercado, 808 F.2d at 801. “The timing

between entry of the plea and motion to withdraw the plea may be indicative of the

defendant’s motivation.” Id. To grant a motion to withdraw simply because a

defendant was weary of an anticipated harsher-than-contemplated sentence would

be to permit an appellant to use the guilty plea as a means of testing the weight of a

potential sentence—a primary ground for denying plea changes. Id. An appellant

“should not be allowed to circumvent the finality of Rule 11” when the motion to

withdraw was filed because the appellant anticipated a harsher-than-contemplated

sentence. Id.

      Upon review of the record and consideration of the briefs of the parties, we

affirm that the district court did not abuse its discretion in denying Jennings’s

motion to withdraw his guilty plea. The record reflected ample evidence for the

district court to conclude that Jennings had close assistance of counsel leading up

to his guilty plea. Jennings stated that his attorney fully and completely discussed

the case with him and that he was completely satisfied with his attorney’s advice

and representation.

      The record demonstrated that Jennings’s plea was knowingly made and that

he understood the nature of the charges against him. The district court did not err

in concluding that the record belied Jennings’s claim that his plea was invalid


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under Fed. R. Crim. P. 11(b)(3) because it was supported by an insufficient factual

basis. Jennings’s plea agreement was unequivocal. Jennings endorsed the facts

recited within the plea agreement under oath by initialing each page and signing in

conclusion. The written agreement listed the elements of the offense, including that

Jennings “knowingly” received items of child pornography and that he believed

such items constituted child pornography. The pleading indicated that Jennings

understood the nature of the offense to which he pled guilty. The factual basis

accompanying the plea agreement—which Jennings also initialed—alleged that

Jennings used computers to receive child pornography, that he stored 4000 images

and 101 movies containing child pornography, and that his “voluminous” child

pornography collection consisted of videos recording the sexual abuse of children.

During his plea proceedings, Jennings twice confirmed to the court that he

reviewed the entire written plea agreement with his attorney and he initialed every

page. He admitted he was entering the plea voluntarily and that he had adequate

time to communicate with his lawyer. After the government proffered facts

demonstrating the quantity of images containing child pornography on Jennings’s

computers, the court specifically asked Jennings if he objected to any of the

government’s proffered facts. Jennings responded negatively. At the close of the

proceeding, Jennings failed to object when the court found that he entered into his

plea intelligently, freely, and voluntarily, and that a factual basis substantiated his


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plea. In order for Jennings’s argument to carry the day, the district court would

have to render invalid the signed plea agreement, Jennings’s sworn endorsement of

the plea agreement, and the entirety of the dialogue of his plea proceeding. As

such, the district court did not abuse its discretion in concluding that Jennings’s

argument lacks merit.

      Additionally, the timing of Jennings’s motion to withdraw his plea did not

suggest a “swift change of heart.” Gonzalez-Mercado, 808 F.2d at 801. Jennings

filed his motion to withdraw his plea approximately three months after his guilty

plea and on the heels of receiving the presentence investigation report. The district

court accurately noted that it was not until the eve of Jennings’s sentencing

hearing, six days after his presentence report issued recommending a guideline

range of 97–121 months, the low end of which was 37 months higher than the

mandatory minimum, that Jennings claimed his plea was not knowing and was not

supported by an adequate factual basis.

      The district court did not abuse its discretion in denying Jennings’s motion

to withdraw his guilty plea. The court correctly considered that the timing of

Jennings’s attempted withdraw warranted consideration. The plea was supported

by a sufficient factual basis, as demonstrated by the pleadings signed and

acknowledged by Jennings, as well as the assertions he made during the colloquy.




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In addition, the record demonstrates that Jennings understood the nature of the

charges against him. Accordingly, we affirm Jennings’s conviction.

      AFFIRMED.




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