          Case: 14-13499   Date Filed: 01/19/2016   Page: 1 of 6


                                                        [DO NOT PUBLISH]




           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 14-13499
                     ________________________

              D.C. Docket No. 1:12-cr-00040-MW-GRJ-1



UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                 versus

SEBASTIAN DARONE MCCOY,

                                                        Defendant-Appellant.

                     ________________________

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

                           (January 19, 2016)
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Before HULL and JILL PRYOR, Circuit Judges, and ROYAL, * District Judge.

PER CURIAM:

       Sebastian Darone McCoy appeals his conviction for being a felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He

argues that the district court abused its discretion by denying his motion to

withdraw his guilty plea.

       We review the district court’s denial of a motion to withdraw a guilty plea

for an abuse of discretion. United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir.

2006). The district court does not abuse its discretion unless its denial is arbitrary

or unreasonable. Id. We review an alleged Brady 1 violation de novo. United

States v. Brester, 786 F.3d 1335, 1338 (11th Cir. 2015). After review of the briefs

and the record and after oral argument, we conclude the district court did not err in

denying McCoy’s motion to withdraw his guilty plea and thus affirm his

conviction.

                   I.      WITHDRAWAL OF A GUILTY PLEA

       A defendant may withdraw his guilty plea after the court accepts the plea,

but prior to sentencing, if he shows “a fair and just reason for requesting the

withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). A defendant does not have an absolute


       *
        Honorable C. Ashley Royal, United States District Judge for the Middle District of
Georgia, sitting by designation.
       1
         Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).
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right to withdraw his guilty plea. See United States v. Medlock, 12 F.3d 185, 187

(11th Cir. 1994). Factors that we consider include: (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 by a withdrawal of the plea. Brehm, 442 F.3d at

1298.

        A district court accepting a guilty plea must ensure that the three core

concerns of Rule 11 are met: (1) the plea is free from coercion; (2) the defendant

understands the nature of the charge; and (3) the defendant knows and understands

the consequences of the plea. United States v. Freixas, 332 F.3d 1314, 1318 (11th

Cir. 2003). A defendant challenging a guilty plea based on a lack of information

must show that the correct information would have made a difference in his

decision to plead guilty. See United States v. Schubert, 728 F.2d 1364, 1365 (11th

Cir. 1984). There is a strong presumption that statements made during a plea

colloquy are true. Medlock, 12 F.3d at 187.

        A guilty plea waives many non-jurisdictional defenses, but some non-

jurisdictional defenses may be raised notwithstanding the plea. See United States

v. Matthews, 168 F.3d 1234, 1242 (11th Cir.) (listing examples), amended on

denial of reh’g sub nom. United States v. Moore, 181 F.3d 1205 (11th Cir. 1999).

This Court has not decided whether a guilty plea waives a Brady claim, or


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(assuming that it does not) whether the government must know of the Brady

material at issue before the plea is entered or merely before sentencing for the

defendant to have a Brady claim. See id. at 1242-43 (declining to decide the issue

because the defendants did not raise a viable Brady claim for other reasons).2

                                    II.     ANALYSIS

       The district court did not abuse its discretion by denying McCoy’s motion to

withdraw his plea. During his plea colloquy, McCoy affirmed that he was satisfied

with his attorney’s representation and that he had enough time to consult his

attorney and explain everything he knew about the case. The record evidence

shows that his attorney reviewed the information provided to him through

discovery, asked the government to verify that its discovery was comprehensive,

sought additional information from McCoy, and negotiated with the government

on McCoy’s behalf after McCoy indicated that he wanted to plead guilty.

       Furthermore, the core concerns of Rule 11 were addressed during McCoy’s

plea colloquy, as he testified that he was not threatened or coerced into that plea,

and he was informed of the elements of his offense, the maximum penalties for the

offense, the trial rights that he waived by pleading guilty, and the civil rights that

       2
         At least two circuits have concluded that a guilty plea does not automatically waive a
Brady claim. Sanchez v. United States, 50 F.3d 1448, 1453 (9th Cir. 1995); United States v.
Wright, 43 F.3d 491, 496 (10th Cir. 1994). At least two circuits have held otherwise. United
States v. Conroy, 567 F.3d 174, 178 (5th Cir. 2009) (Brady claim waived where defendant pled
guilty); Smith v. United States, 876 F.2d 655, 657 (8th Cir. 1989) (same). But see White v.
United States, 858 F.2d 416, 422 (8th Cir. 1988) (acknowledging that a Brady violation could be
a consideration in whether a guilty plea is valid).
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he would lose as a felon. Freixas, 332 F.3d at 1318. Therefore, the district court’s

conclusions that McCoy received close assistance of counsel and made a knowing

and voluntary plea were not arbitrary or unreasonable.

       Finally, we need not decide whether a guilty plea waives a Brady claim. To

demonstrate a Brady violation, the defendant must prove that: (1) the government

possessed evidence that was favorable to him; (2) he did not possess the evidence

and could not obtain the evidence with any reasonable diligence; (3) the

prosecution suppressed that evidence; and (4) there is a reasonable probability that

the outcome would have been different had the evidence been disclosed to him.

United States v. Vallejo, 297 F.3d 1154, 1164 (11th Cir. 2002). Prejudice is not

established by the mere possibility that undisclosed information might have helped

the defense or affected the outcome of a trial. Brester, 786 F.3d at 1339.

       Even if McCoy did not waive his Brady claim by pleading guilty, he did not

demonstrate a reasonable probability that the result of the proceedings would have

been different had the government disclosed the 14-page ACSO report concerning

his arrest. The undisclosed report was largely inculpatory as it confirmed the

account of the incident provided in another law enforcement report that was

disclosed during discovery. 3 The statement given by Darian Holmes (that McCoy


       3
         To the extent the ACSO report mentions other documents we do not consider them as
they are not part of the record in the district court or on appeal. And we do not speculate on what
these documents might show.
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claims was exculpatory) in the undisclosed report did not indicate that Holmes

even saw the police chase or street incident where McCoy possessed the Glock

firearm, causing the sheriff’s deputy to arrest him. In fact, Holmes’s account of an

event prior to this incident was contradicted by other witnesses and was not

credible in light of this and other evidence. Further, the record evidence shows

that McCoy wanted to plead guilty, regardless of the information that he received

during discovery. McCoy has failed to show the requisite prejudice.

      For various reasons, the district court did not abuse its discretion by denying

McCoy’s motion to withdraw his guilty plea, and we affirm his conviction.4

      AFFIRMED.




      4
          McCoy has not raised any challenge to his 92 months sentence.
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