           Case: 13-13510   Date Filed: 07/30/2014   Page: 1 of 4


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-13510
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:12-cr-20452-KMM-4



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

DARVIS SANTIESTEBAN,

                                                         Defendant-Appellant.

                       ________________________

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

                              (July 30, 2014)

Before PRYOR, MARTIN and BLACK, Circuit Judges.

PER CURIAM:
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      Darvis Santiesteban appeals the district court’s denial of his motion to

withdraw his guilty plea. Santiesteban pled guilty to one count of conspiracy to

possess with intent to distribute 1,000 or more marijuana plants, in violation of 21

U.S.C. § 846, and one count of conspiracy to launder money, in violation of 18

U.S.C. § 1956(h). The district court sentenced Santiesteban to 262 months’

imprisonment—the low end of his advisory guidelines range. Santiesteban

maintains he should have been allowed to withdraw his guilty plea because he did

not know he would be subject to the career offender guidelines in U.S.S.G.

§ 4B1.1. After review of the record and consideration of the parties’ briefs, we

conclude the district court did not abuse its discretion by denying Santiesteban’s

motion to withdraw his guilty plea and we therefore affirm. See United States v.

Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006) (“We review the denial of a request

to withdraw a guilty plea for abuse of discretion.” (quotation omitted)).1

      As the district court found, Santiesteban failed to demonstrate “a fair and

just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B); see also

United States v. Izquierdo, 448 F.3d 1269, 1277 (11th Cir. 2006) (“A

defendant-movant clearly has the burden on a motion to withdraw a guilty plea.”).

In determining whether the defendant demonstrated a fair and just reason for

withdrawal, we consider “(1) whether close assistance of counsel was available;


      1
          Santiesteban’s motion to file a reply brief out of time is GRANTED.
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(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

(quotation omitted).

      First, Santiesteban had the close assistance of counsel. During the

change-of-plea hearing, Santiesteban acknowledged that he (1) had reviewed the

evidence against him with his lawyer, (2) had thoroughly discussed the decision to

plead guilty with his lawyer, (3) had reviewed the plea agreement with his

attorney, and (4) was satisfied with counsel’s representation.

      Second, Santiesteban’s plea was not unknowing and involuntary because he

expected a lower advisory guidelines range and did not know he would be subject

to the career offender guidelines. The express terms of Santiesteban’s plea

agreement, and his own statements during the change-of-plea hearing, demonstrate

the meritless nature of his arguments on appeal. See United States v. Medlock, 12

F.3d 185, 187 (11th Cir. 1994) (“There is a strong presumption that the statements

made during the [plea] colloquy are true.”). In particular, Santiesteban’s plea

agreement explicitly stated his sentence had not yet been determined and any

estimate of his probable sentencing range or ultimate sentence, whether received

from counsel, the Government, or the probation office, was merely a prediction

that was not binding on the district court. During the plea colloquy, the magistrate


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judge expressly informed Santiesteban that “regardless of any expectation you may

have as to what the sentence may be, if the Court were to sentence you to a term

that was either different or greater than what you’re anticipating, you cannot use

that fact as a basis to withdraw your plea. You would still be bound by your plea.”

Santiesteban responded “I understand, your Honor.” In addition, both the plea

agreement and the magistrate judge informed Santiesteban of the statutory

minimum and maximum sentences he could receive, and he confirmed to the

magistrate judge that his decision to plead guilty was not the product of coercion

and was made knowingly and voluntarily.

        Finally, upholding Santiesteban’s guilty plea would avoid a trial and

conserve judicial resources, and we agree with the district court that the

Government would be prejudiced by allowing Santiesteban to withdraw his guilty

plea.

        AFFIRMED.




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