           Case: 15-10024   Date Filed: 12/02/2015   Page: 1 of 14


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-10024
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 1:14-cr-00401-MHT-CSC-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                 versus

KAMARIAN D. MILLENDER,

                                                         Defendant-Appellant.

                       ________________________

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

                            (December 2, 2015)

Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:
             Case: 15-10024     Date Filed: 12/02/2015   Page: 2 of 14


      Kamarian Deshawn Millender appeals the district court’s denial of his

motion to withdraw his guilty plea following his conviction for aggravated identity

theft, in violation of 18 U.S.C. § 1028A. Millender moved to withdraw his guilty

plea before sentencing, arguing that the plea was not knowing and voluntary

because his retained counsel allegedly gave ineffective assistance. On appeal,

Millender argues that the district court abused its discretion in concluding that his

allegations of ineffective assistance did not present a fair and just reason for

withdrawal of his guilty plea.     After careful review, we affirm the denial of

Millender’s motion to withdraw his guilty plea.

                                         I.

      Millender was arrested on February 25, 2014, after police found evidence of

identity theft in his vehicle during a search prompted by an alert from a drug-

detection dog. Millender retained Dustin Fowler as his attorney shortly after his

arrest. On June 19, Millender, with Fowler’s assistance, executed a plea agreement

with the government in which he agreed to plead guilty to one count of aggravated

identity theft charged in a felony information, and to serve the mandatory term of

24 months’ imprisonment for that offense.          See 18 U.S.C. § 1028A(a)(1).

Millender also executed an “addendum” to the plea agreement in which he agreed

to cooperate with the government’s investigation, including by giving testimony




                                         2
               Case: 15-10024      Date Filed: 12/02/2015      Page: 3 of 14


against co-conspirators at trial. We refer to both documents collectively as the

“plea agreement” unless a reason exists to distinguish between the two.

       The plea agreement also provided, in relevant part, that Millender agreed to

pay restitution as ordered by the court in an amount that included all losses

suffered from his conduct, and not just losses related to the specific count of

conviction. In a factual basis in the plea agreement, Millender admitted that he had

acquired stolen identities through his work as a lab technician at a medical facility

and that he had “victimized approximately 73 individuals and sought to defraud the

IRS out of approximately $536,028,” though only about $18,915 in refunds

actually issued. In exchange for Millender’s plea, the government agreed not to

bring any other charges arising out of the factual basis.

       On July 8, a magistrate judge accepted Millender’s guilty plea and

adjudicated him guilty. 1 Before accepting his guilty plea, the magistrate judge

conducted the plea colloquy required by Rule 11, Fed. R. Crim. P., to ensure that

Millender’s plea was knowing and voluntary. See United States v. Freixas, 332

F.3d 1314, 1318 (11th Cir. 2003) (listing the three core concerns of Rule 11:

(1) that the guilty plea is free from coercion; (2) that the defendant understands the

nature of the charges; and (3) that the defendant knows and understands the


       1
         Millender consented to have the magistrate judge conduct his plea colloquy and accept
his plea. See United States v. Woodard, 387 F.3d 1329, 1331-34 (11th Cir. 2004). But see
Brown v. United States, 748 F.3d 1045, 1071 n.53 (11th Cir. 2014).
                                              3
              Case: 15-10024    Date Filed: 12/02/2015    Page: 4 of 14


consequences of his guilty plea).       To that end, the magistrate judge asked

Millender a series of questions regarding the plea agreement and his decision to

plead guilty, including whether he “had time to read the information and discuss

the charge against [him] with Mr. Fowler”; whether he “underst[oo]d the charge

against [him]”; whether he was “fully satisfied with Mr. Fowler’s representation”;

whether he had “an opportunity to read [the plea agreement] and to fully discuss

the terms of the plea agreement with Mr. Fowler”; and whether he “underst[oo]d

the terms of the plea agreement.”       Millender, under oath, responded to each

question affirmatively. Millender also stated that no one had attempted to force

him to plead guilty, and that he was in fact guilty of acquiring stolen identities for

the purpose of filing fraudulent income-tax returns.         With these and other

assurances, Millender’s guilty plea was accepted.

      Three months later, and a few days before sentencing, Millender wrote a

letter to the district court seeking to withdraw his guilty plea based on the

ineffective assistance of retained counsel. The court allowed retained counsel to

withdraw, appointed new counsel, and then held a hearing on the matter.

      At the hearing on his motion to withdraw his guilty plea, Millender claimed

that he was unaware of provisions in his plea agreement relating to his restitution

and cooperation obligations because Fowler did not provide him with the full

agreement. Millender also testified about the circumstances of his arrest and his


                                          4
             Case: 15-10024     Date Filed: 12/02/2015     Page: 5 of 14


belief that Fowler should have filed a motion to suppress evidence obtained from

what Miller viewed as an illegal search of his vehicle.

      For his part, Fowler testified that, before Millender signed the agreement, he

discussed with Millender the terms of the plea agreement, including the possibility

that Millender would have to testify at trial; that Millender stated that he read,

understood, and did not have any questions about the plea agreement; and that

Millender was provided with full copies of the plea agreement.             Fowler also

testified that he and Millender discussed filing a motion to suppress based on the

circumstances of his arrest, including the likelihood of suppression, but that

Millender did not want to pursue suppression because doing so could expose him

to indictment on additional charges and the possibility of a much longer sentence.

      Following the hearing, the district court entered an order denying

Millender’s motion to withdraw his guilty plea.           The court determined that

Millender had been fully informed of the terms of the plea agreement, finding his

testimony to the contrary “not credible.” As to Fowler’s alleged ineffectiveness,

the court found that Millender did not want to pursue suppression because of the

risk that the government might bring additional charges and increase his sentencing

exposure. In light of that strategic choice, the court concluded, whether Fowler

had more fully investigated the circumstances of Millender’s arrest “would not

have altered Millender’s decision to plead.” Doc. 29 at 8. The court also found


                                          5
              Case: 15-10024    Date Filed: 12/02/2015   Page: 6 of 14


that Millender would have been unlikely to succeed on the merits of his

suppression claim. Finding no fair and just reason for withdrawal of his guilty

plea, the district court denied Millender’s motion.

      The district court sentenced Millender to serve 24 months’ imprisonment

and to pay $18,915 in restitution. Millender now appeals the denial of the motion

to withdraw his guilty plea.

                                         II.

      We review a district court’s denial of a defendant’s motion to withdraw his

guilty plea for an abuse of discretion. Freixas, 332 F.3d at 1316. The district court

does not abuse its discretion unless its denial is arbitrary or unreasonable. United

States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006).           Challenges to the

effectiveness of counsel are reviewed de novo as a mixed question of law and fact.

Freixas, 332 F.3d at 1316.

                                         III.

      A district court may permit a defendant to withdraw his guilty plea before

sentencing for “any fair and just reason.” Fed. R. Crim. P. 11(d)(2)(B). This rule

should be liberally construed, but a defendant has “no absolute right to withdraw a

guilty plea before sentencing.” United States v. McCarty, 99 F.3d 383, 385 (11th

Cir. 1996). To determine whether a defendant has shown a fair and just reason, a

court should “evaluate[] the totality of the circumstances, including: (1) whether


                                          6
                Case: 15-10024   Date Filed: 12/02/2015   Page: 7 of 14


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.” Freixas, 332 F.3d at 1318 (internal quotation marks omitted). The good

faith, credibility, and weight of a defendant’s assertions in support of these

showings are issues for the trial court to decide. United States v. Buckles, 843 F.2d

469, 472 (11th Cir. 1988).

      Here, the district court did not abuse its discretion in refusing to allow

Millender to withdraw his guilty plea. The district court conducted a hearing on

the matter, heard extensive testimony from Millender and Fowler regarding the

circumstances under which Millender’s plea was entered, and then issued an order

explaining its reasons for denying Millender’s motion. Millender has not shown

that the district court’s decision was arbitrary or unreasonable. See Brehm, 442

F.3d at 1298.

      The district court was well within its discretion to find not credible

Millender’s testimony that he was unaware of the contents of the plea agreement.

See Buckles, 843 F.2d at 472. In critical respects, Millender’s testimony at the plea

withdrawal hearing was contradicted by his statements under oath during the plea

hearing. Specifically, at the plea hearing, Millender, a college graduate, told the

magistrate judge that he read the plea agreement, fully discussed its terms with


                                          7
               Case: 15-10024      Date Filed: 12/02/2015     Page: 8 of 14


Fowler, and understood its terms. A strong presumption exists that his statements

made under oath during his plea hearing were true, and Millender must overcome a

heavy, but not insurmountable, burden of proving those statements false. See

United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994); United States v.

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

       In support of his burden, Millender claims that his attorney never provided

him with full copies of the June 19 plea agreement and that additional terms

concerning restitution and cooperation were added to the agreement to which he

had originally agreed two days before.2 However, Millender’s testimony on these

points is directly contradicted by Fowler, who testified that Millender was

provided with full copies of the relevant agreements, that they discussed the terms

of the plea agreement and Millender stated that he read and understood it, and that,

with respect to Millender’s cooperation obligations in particular, Fowler told

Millender that he may have to testify for the government before a grand jury or at

trial. The district court was entitled to credit Fowler’s testimony on these points.

See Buckles, 843 F.2d at 472. In addition, Millender’s testimony at the plea-

withdrawal hearing reflects that when Millender entered his guilty plea, he was

aware of the amount of restitution for which he would be responsible. Specifically,

he testified that he learned one hour before the hearing that the restitution amount

       2
        The government introduced a copy of the earlier agreement Millender was referencing,
which appears to be no different from the final agreement in any material respect.
                                             8
              Case: 15-10024    Date Filed: 12/02/2015     Page: 9 of 14


was $18,915. In sum, the record supports the district court’s conclusion that

Millender knew and understood the terms of the plea agreement.

      The district court also rejected as unconvincing Millender’s claim that

Fowler coerced him into pleading guilty. Like his claim of lack of awareness of

certain terms in the plea agreement, this claim, too, is contradicted by Millender’s

statements under oath during the plea colloquy.          Millender stated at the plea

hearing that he was satisfied with Fowler’s representation in the case and that no

one had attempted to force him to plead guilty. He also confirmed that he was in

fact guilty of acquiring stolen identities for the purpose of filing fraudulent

income-tax returns. Millender has not overcome the strong presumption that these

statements are false.

      Millender and Fowler met alone to discuss the case at least four times for

one hour each time, and according to Fowler’s testimony, he and Millender

discussed the circumstances surrounding the search of his vehicle and his arrest.

They discussed filing a motion to suppress and the likelihood of suppression, but,

according to Fowler, the government had indicated that if Millender sought to fight

the evidence, it would take the case to a grand jury and indict Millender on other

charges besides the aggravated-identity-theft count.       This in turn would have

increased Millender’s possible sentence. Fowler testified that Millender “didn’t

want to risk that.”     In view of this testimony, the district court reasonably


                                         9
             Case: 15-10024    Date Filed: 12/02/2015   Page: 10 of 14


concluded that Millender made a strategic decision not to pursue suppression. The

fact that Fowler advised Millender to plead guilty in order to avoid additional

charges is not coercive. Buckles, 843 F.2d at 472 (“A defendant cannot complain

of coercion where his attorney, employing his best professional judgment,

recommends that the defendant plead guilty.” (internal quotation marks omitted)).

      Millender’s principal contention is that his guilty plea was not knowing and

voluntary because Fowler “failed to fully and completely investigate the illegality

of the search” and gave ineffective assistance as a result.         See McCoy v.

Wainwright, 804 F.2d 1196, 1198 (11th Cir. 1986) (“The guilty plea is not

knowing[] and voluntar[y] . . . if the defendant does not receive reasonably

effective assistance of counsel in connection with the decision to plead guilty.”

“The guilty plea does not relieve counsel of the responsibility to investigate

potential defenses so that the defendant can make an informed decision.” (citation

omitted). Had Fowler conducted a full investigation, Millender asserts, Millender

would not have entered a plea but instead would have elected to proceed with a

motion to suppress, which, if successful, would have ended the case.

      Millender’s claim of ineffective assistance of counsel is governed by the

familiar framework established in Strickland v. Washington, 466 U.S. 668, 104 S.




                                        10
               Case: 15-10024       Date Filed: 12/02/2015       Page: 11 of 14


Ct. 2052 (1984).3 To prevail on a claim of ineffective assistance, a defendant must

show both deficient performance and prejudice. Winthrop-Redin v. United States,

767 F.3d 1210, 1219 (11th Cir. 2014). With respect to deficient performance, we

strongly presume that counsel rendered adequate assistance. Id. An attorney’s

“total failure to conduct pre-trial discovery,” however, may be considered deficient

performance. Kimmelman v. Morrison, 477 U.S. 365, 386-87, 106 S. Ct. 2574,

2589 (1986). With respect to prejudice, the defendant must show that there is a

reasonable probability that, but for counsel’s errors, the result of the proceeding

would have been different. Winthrop-Redin, 767 F.3d at 1219. In the context of a

challenged guilty plea, this means the defendant must show that, but for counsel’s

errors, he would not have pled guilty. Id.

       Here, Millender has not shown that counsel performed deficiently.                        It

appears undisputed that filing a motion to suppress could have triggered severe and




       3
          We normally do not address claims of ineffective assistance of counsel on direct review
unless the district court entertained the claim and the record is sufficiently developed. United
States v. Patterson, 595 F.3d 1324, 1328-29 (11th Cir. 2010). Here, we find that Millender’s
claim is properly before us because it was raised in Millender’s motion to withdraw his guilty
plea, the district court heard testimony from Millender and Fowler on the issue of whether
Fowler’s failure to investigate the circumstances of Millender’s arrest rendered his guilty plea
unknowing and involuntary, and the parties on appeal cite to and base their arguments with
respect to this issue on ineffective-assistance caselaw. We consider the Strickland analysis to be
subsumed within the broader analysis of whether Millender has shown a fair and just reason for
withdrawal of his guilty plea, but we apply the standards of Strickland, in line with the parties’
arguments on appeal, to determine whether Fowler’s allegedly deficient investigation shows that
the guilty plea was unknowing or involuntary. See McCoy, 804 F.2d at 1198.
                                               11
              Case: 15-10024      Date Filed: 12/02/2015     Page: 12 of 14


negative consequences flowing to Millender. 4 Cf. Green v. Nelson, 595 F.3d 1245,

1251 (11th Cir. 2010) (finding deficient performance because “filing a motion to

suppress could have had no possible negative impact on Green’s defense and, if

granted, would have almost assuredly precluded his conviction”). The record also

indicates that Fowler was aware of the facts and circumstances surrounding the

search of Millender’s vehicle and his arrest. Millender testified that he told Fowler

about the search and arrest, and counsel testified that he spoke to the officers

involved.    According to Fowler’s testimony, Millender did not want to risk

pursuing suppression if it would increase his potential sentence. Millender does

not identify with any particularity how counsel was mistaken about either the facts

of the search and arrest or the applicable law. Under these circumstances, it does

not strike us as unreasonable for Fowler to have advised Millender to plead guilty

without spending additional time investigating more fully the circumstances of the

search and arrest, such as trying to obtain a purported video of the incident.

       In any case, even if we assume, arguendo, that Fowler’s performance was

deficient, Millender has not shown that, but for counsel’s error, he would not have

pled guilty. See Winthrop-Redin, 767 F.3d at 1219. We are unconvinced that


       4
         For example, the government may have been able to file mail or wire-fraud charges
under 18 U.S.C. §§ 1341 and 1343. Had it done so, and had Millender been convicted of even
one such charge, he would have faced a sentence of up to 20 years’ imprisonment, which would
have been required to have been imposed consecutively to the mandatory two-year penalty for
aggravated identity theft to which Millender was sentenced under the plea agreement. See 18
U.S.C. § 1028A(b).
                                            12
             Case: 15-10024     Date Filed: 12/02/2015    Page: 13 of 14


further investigation by Fowler would have altered Millender’s decision to plead

guilty. The facts Fowler would have discovered through additional investigation

are unknown and therefore too speculative to show a reasonable probability of a

different result. See Harrison v. Richter, 562 U.S. 86, 112, 131 S. Ct. 770, 792

(2011) (“The likelihood of a different result must be substantial, not just

conceivable.”).

      Millender also has not shown that he would have been likely to prevail on

his theory of suppression, such that it would have made sense, in keeping with

Fowler’s understanding of Millender’s motivations, to risk indictment and a longer

sentence in order to pursue suppression. In fact, Millender makes no arguments on

appeal about the merits of a potential suppression claim. Instead, he asserts that it

was improper for the court to determine that suppression was unlikely under the

facts he alleged. But given that the viability of a motion to suppress was material

to matters before the court at the plea-withdrawal hearing, the court did not err in

reaching this issue based on Millender’s own testimony.

      In view of Fowler’s testimony at the plea-withdrawal hearing and

Millender’s statements under oath during the earlier plea colloquy, the district

court did not act unreasonably or arbitrarily in concluding that, under the totality of

the circumstances, Millender received close assistance of counsel and his guilty




                                          13
               Case: 15-10024       Date Filed: 12/02/2015       Page: 14 of 14


plea was made knowingly and voluntarily. 5 See Buckles, 843 F.2d at 472-44.

Millender has not shown that Fowler’s performance, as it relates to his

investigation of the circumstances of Millender’s arrest and his advice to plead

guilty, was deficient or that Millender was prejudiced by any deficiency. And

contrary to Millender’s contention, the district court did not give undue weight to

considerations of judicial resources and prejudice to the government. The district

court expressly stated—and nothing about its order indicates otherwise—that

neither judicial resources nor prejudice to the government weighed heavily in its

analysis.

                                              IV.

       In sum, Millender has not shown that he was denied effective assistance of

counsel, and the district court did not abuse its discretion in denying Millender’s

motion to withdraw his guilty plea. Therefore, we affirm.

       AFFIRMED.




       5
         Millender also contends for the first time in his reply brief that his plea was not
knowing and voluntary because he did not know the “exact charges” and sentence he would face
had he been indicted. We generally do not consider arguments raised for the first time in a reply
brief. United States v. Britt, 437 F.3d 1103, 1104-05 (11th Cir. 2006). In any case, this
contention is meritless. Aside from the impossibility of discussing the “exact” charges in an
indictment that has not issued, Fowler testified that he reviewed potential guideline calculations
with Millender, and there is no indication that knowledge of an exact possible sentence, as
opposed to an estimated possible sentence, would have affected Millender’s decision.
                                               14
