           Case: 14-13459   Date Filed: 07/30/2015   Page: 1 of 5


                                                        [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-13459
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 5:12-cr-00455-RDP-TMP-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

versus

JOSEPH SHANE TERRY,
a.k.a. Joseph Terry,

                                                         Defendant-Appellant.

                       ________________________

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

                              (July 30, 2015)

Before TJOFLAT, WILSON and BLACK, Circuit Judges.

PER CURIAM:
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       Joseph Shane Terry appeals his convictions and sentences for five counts of

wire fraud, in violation of 18 U.S.C. § 1343; four counts of making a false

statement to the Small Business Administration, in violation of 15 U.S.C. § 645(a);

three counts of making a false statement on a loan application, in violation of 18

U.S.C. § 1014; and one count of engaging in monetary transactions in criminally

derived property, in violation of 18 U.S.C. § 1957. Terry argues the district court

erred by (1) denying his motion to withdraw his guilty pleas; (2) denying his

motion to dismiss counts 1-5 and 7-9 as untimely filed; (3) applying a sentencing

enhancement for obstruction of justice, pursuant to U.S.S.G. § 3C1.1; and (4)

denying a reduction for acceptance of responsibility, pursuant to U.S.S.G.

§ 3E1.1(a). As the parties are familiar with the facts of this case, we will not

recount them in detail. We include only those facts necessary to the discussion of

each issue. Upon review, we affirm. 1

                                      I. DISCUSSION

A. Motion to Withdraw Guilty Plea

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

withdraw his guilty plea. After the district court accepts a guilty plea and before

       1
           We review the denial of a defendant’s motion to withdraw his guilty plea for abuse of
discretion. United States v. Izquierdo, 448 F.3d 1269, 1276 (11th Cir. 2006). “We review the
district court’s denial of a motion to dismiss an indictment for abuse of discretion, but the
interpretation and application of a statute of limitations is a legal question that we review de
novo.” United States v. Rojas, 718 F.3d 1317, 1319 (11th Cir. 2013). We review the validity of
an appeal waiver de novo. United States v. Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008).


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sentencing, the defendant may withdraw his guilty plea if she can show a “fair and

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

determining whether a defendant has met this burden, a district court may consider

the totality of the circumstances surrounding the plea, including whether: (1) 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 by withdrawal of the plea. United States v. Buckles, 843 F.2d 469, 471–

72 (11th Cir. 1988).

      Terry argues his guilty pleas were not knowing and voluntary because, at the

time of his change-of-plea hearing, he was taking anti-depression medications,

drinking alcohol, and taking prescriptions for migraines and high blood pressure.

The district court’s finding that Terry had made his pleas knowingly and

voluntarily was not clearly erroneous. The district court noted that, during the

change-of-plea hearing, Terry did not slur his speech, seemed attentive of his

circumstances, and sought clarification about certain counts in the indictment.

Additionally, Terry’s attorney confirmed Terry was, both before and after the

change-of-plea hearing, engaged and able to converse about his case. The district

court’s decision to credit its own and the attorney’s first-hand impressions of

Terry’s competence, rather than Terry’s self-serving testimony and the testimony

of his medical experts who lacked any first-hand knowledge of his mental state,


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was not clearly erroneous. See Anderson v. City of Bessemer City, N.C., 470 U.S.

564, 574 (1985) (“Where there are two permissible view of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.”). Considering the

totality of the circumstances, the district court did not abuse its discretion in

denying Terry’s motion to withdraw his pleas.

B. Motion to Dismiss Counts 1-5 and 7-9 as Untimely

       Terry’s unconditional guilty pleas waived his right to appeal the district

court’s denial of the motion to dismiss Counts 1-5 and 7-9 as time barred. A

defendant’s knowing, voluntary, and unconditional plea of guilty waives all non-

jurisdictional defects in the proceedings until the entry of the plea. See United

States v. Yunis, 723 F.2d 795, 796 (11th Cir. 1984). “[P]ursuant to binding

precedent, [a] statute of limitations is a matter of defense that must be asserted at

trial by the defendant.” United States v. Najjar, 283 F.3d 1306, 1308 (11th Cir.

2002) (citing Capone v. Aderhold, 65 F.2d 130, 131 (5th Cir. 1933)2).

Accordingly, “the expiration of the statute of limitations does not divest a district

court of subject matter jurisdiction, but rather constitutes an affirmative defense,

which the defendant can waive.” Najjar, 283 F.3d at 1309. Terry’s guilty pleas

waived his right to appeal the denial of his claim that the statute of limitations


       2
          In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.
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barred prosecution on Counts 1-5 and 7-9. See id. at 1308–09; Yunis, 723 F.2d at

796.

C. Sentencing Issues

       Terry’s knowing and voluntary appeal waiver bars his attempt to challenge

the district court’s application of an obstruction of justice sentencing enhancement,

as well as the district court’s refusal to apply a downward sentencing adjustment

for acceptance of responsibility. See United States v. Bushert, 997 F.2d 1343,

1350 (11th Cir. 1993) (holding knowing and voluntary appeal waivers are

enforceable). In his plea agreement, Terry knowingly and voluntarily waived his

right to appeal his convictions and sentences, and none of the waiver’s exceptions

are applicable here.

                                II. CONCLUSION

       In light of the foregoing reasons, we affirm Terry’s convictions and

sentences.

       AFFIRMED.




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