                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 09-15000
                                                             OCTOBER 5, 2010
                          Non-Argument Calendar
                                                               JOHN LEY
                        ________________________                CLERK

                 D. C. Docket No. 07-00144-CR-T-17-AEP


UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                   versus

ERIC T. SCOTT,

                                                          Defendant-Appellant.


                        ________________________

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

                              (October 5, 2010)

Before EDMONDSON, BLACK and ANDERSON, Circuit Judges.
PER CURIAM:



      Eric Scott (“Defendant”) appeals the district court’s denial of his request to

withdraw his guilty plea. Because Defendant has not demonstrated a fair or just

reason why he should be permitted to withdraw his plea, we affirm.

      Defendant was indicted on one count of being a felon in possession of a

firearm. 18 U.S.C. § 922(g)(1); id. § 924(e)(1). After the district court denied

Defendant’s motion to suppress certain evidence, he entered an unwritten guilty

plea with the Magistrate Judge. The judge informed Defendant that, if the guilty

plea were accepted by the district court, Defendant would no longer have the right

to “freely change your mind and to withdraw [the] plea of guilty.” Defendant

stated that he understood, and his attorney implied that he understood the plea to

contain an appeal waiver.

      After the district court accepted Defendant’s plea, Defendant -- represented

by new counsel -- moved to withdraw the guilty plea. He contends that he

mistakenly believed he had a right to appeal his denial of the motion to suppress

evidence. At a hearing on his motion to withdraw the plea, he conceded that the

district court accepted his plea before he moved to withdraw it, but argued that he

had a mistaken belief about the content and nature of his plea and any possible



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right to appeal. The government asserted that, because the plea had already been

accepted and entered, Defendant should only be permitted to withdraw it for a “fair

and just reason.” The government also noted that Defendant had been represented

by counsel and had entered a knowing and voluntary plea. Defendant’s former

attorney testified that he had explained to Defendant that a guilty plea would

foreclose an opportunity to appeal the motion to dismiss.

      The Magistrate Judge issued a Recommendation and Report that

Defendant’s motion to withdraw his plea be denied. The magistrate concluded that

Defendant’s plea was knowing, voluntary, and chosen with the close support of

counsel. The magistrate also credited the testimony of Defendant’s lawyer that he

had explained the nature and consequences of the plea to Defendant. The

magistrate finally concluded that Defendant had offered no “fair and just reason”

justifying an exception to the “bright-line standard” of Federal Rule of Criminal

Procedure 11. The district court accepted the report and recommendation over

Defendant’s objection and sentenced him to 188 months’ imprisonment.

      We review the 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). We

accept the magistrate’s factfindings unless they are clearly erroneous, and we defer

to his credibility determinations unless they are not believable. United States v.



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Moore, 525 F.3d 1033, 1040 (11th Cir. 2008) (citing United States v. Ramirez-

Chilel, 289 F.3d 744, 749 (11th Cir. 2002)). A district court’s choice between two

permissible views of the evidence cannot be clearly erroneous. N.A.A.C.P.,

Jacksonville Branch v. Duval County Sch., 273 F.3d 960, 965 (11th Cir. 2001).

        A defendant may withdraw a guilty plea any time before it is accepted by the

district court. But after it is accepted, it may be withdrawn only for a “fair and just

reason.” See Fed. R. Crim. P. (11)(d)(1)–(d)(2)(B). To determine if a defendant

has met this burden, the district court considers the totality of the circumstances

and weighs the following factors: (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. Brehm, 442 F.3d at

1298.

        Defendant concedes that the district court accepted his guilty plea before he

filed his motion to withdraw it. He also concedes that the fact findings below are a

“challenging hurdle,” given that the Magistrate Judge based his decision, in part,

on the credibility of witnesses (including Defendant and his first lawyer) who

testified.

        The four factors explained in Brehm do not weigh in favor of concluding



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that there is a “fair and just” reason to allow Defendant to withdraw his plea. He

was represented by counsel, with whom he had repeated discussions about his plea.

When asked by the magistrate, Defendant stated in open court that he understood

the nature of his plea, its consequences, and its finality. And while we give little

weight to the third and fourth Brehm factors when a plea was knowingly entered

with assistance of counsel, we also conclude that the adjudication of Defendant’s

appeal on the motion to suppress would not conserve judicial resources and might

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

801 (11th Cir. 1988) (“Because the appellant received close and adequate

assistance of counsel and entered his plea knowingly and voluntarily . . . . we do

not give the [judicial resources] factor . . . considerable weight. Nor do we give

particular attention to the possibility of prejudice to the government caused by the

withdrawal of the plea.”).

      Defendant has failed to demonstrate a fair and just reason why he should be

allowed to withdraw his guilty plea. And the Magistrate Judge’s credibility

determinations -- based upon live testimony -- are not clearly erroneous in the light

of the record. Therefore, the district court’s decision to accept the Magistrate

Judge’s recommendation was not an abuse of discretion.

      AFFIRMED.



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