                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                     FILED
                                                            U.S. COURT OF APPEALS
                                No. 08-13901                  ELEVENTH CIRCUIT
                                                                  APRIL 13, 2009
                            Non-Argument Calendar
                                                               THOMAS K. KAHN
                          ________________________
                                                                     CLERK

                       D. C. Docket No. 07-20891-CR-JIC

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                      versus

GERARDO GARCIA,

                                                              Defendant-Appellant.


                          ________________________

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

                                 (April 13, 2009)

Before TJOFLAT, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

     This appeal presents one issue: whether the district court abused its
discretion in denying appellant’s motion to withdraw his plea of guilty to

possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1)

and 924(e). We find no abuse of discretion and accordingly affirm.1

       Appellant acknowledges that the plea colloquy the district court engaged in

with him fully complied with the requirements of Federal Rule of Criminal

Procedure 11.2 He nonetheless argues that the district court abused its discretion

given the totality of the circumstances before the court. That is, the court was

fully aware that (1) he entered the plea in confusion and haste; (2) he was

obviously dissatisfied with his counsel for delaying his review of the presentence

report and for failing to file a motion to suppress the firearm at issue; (3) he was

equivocal about entering the plea; and (4) a withdrawal of his plea would not have

prejudiced the Government because his motion was filed only two months after he

entered the plea.

       Prior to sentencing, a defendant may withdraw his guilty plea if he “can

show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P.



       1
         We review the district court’s decision denying a motion to withdraw a guilty plea for
abuse of discretion. United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006). Such
decision does not constitute an abuse of discretion unless it is arbitrary or unreasonable. Id.
       2
          The three primary requirements of Rule 11 are: “(1) the guilty plea must be free from
coercion; (2) the defendant must understand the nature of the charges; and (3) the defendant
must know and understand the consequences of his guilty plea.” United States v. Siegel, 102
F.3d 477, 480 (11th Cir. 1996).

                                                2
11(d)(2)(B). In determining whether appellant met this burden here, we consider

“the totality of the circumstances surrounding the plea,” including 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 [appellant]

were allowed to withdraw his plea.” United States v. Buckles, 843 F.2d 469, 471-

72 (11th Cir. 1988). In taking these factors into account, we presume that the

statements appellant made during the Rule 11 plea colloquy were true. United

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

having stated under oath that his plea was knowing and voluntary and free from

coercion, bore a heavy burden to show that his statement was false. United States

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

      The gist of appellant’s argument focuses on the second factor cited above,

whether his plea of guilty was knowing and voluntary. He contends that it was not

because he did not receive “reasonably effective assistance of counsel in

connection with the decision to plead guilty.” McCoy v. Wainwright, 804 F.2d

1196, 1198 (11th Cir. 1986). Put another way, “there is a reasonable probability

that, but for counsel's errors, he would not have pleaded guilty and would have

insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370,



                                          3
88 L.Ed.2d 203 (1985).

       In denying appellant’s motion to withdraw his plea, the district court

implicitly, if not explicitly, disagreed. Although he initially appeared to be hesitant

in tendering his plea of guilty, he admitted to the court counsel had not coerced

him to plead guilty and that he fully understood the nature of the charge and the

consequences of pleading guilty. There was nothing in the record before the court

which indicated that counsel’s representation was constitutionally deficient.3 The

court therefore did not abuse its discretion in denying the motion to withdraw.

       AFFIRMED.




       3
           The attorney representing appellant at the Rule 11 plea colloquy and at sentencing was
the second attorney the court appointed to represent appellant. Appellant was dissatisfied with
his first attorney, who was discharged.

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