                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 09-11620                ELEVENTH CIRCUIT
                                                        FEBRUARY 24, 2010
                        Non-Argument Calendar
                                                             JOHN LEY
                      ________________________                 CLERK

                 D. C. Docket No. 08-00077-CR-3-MCR

UNITED STATES OF AMERICA,


                                                          Plaintiff-Appellee,

                                 versus

ORESTES CABRERA,

                                                       Defendant-Appellant.


                      ________________________

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

                           (February 24, 2010)

Before BARKETT, HULL and ANDERSON, Circuit Judges.

PER CURIAM:
      Following his convictions for (1) conspiring to distribute and possess with

intent to distribute 5 kilograms or more of cocaine, in violation of 21 U.S.C.

§§ 841(a)(1); 841(b)(1)(a)(ii); and 846, and (2) possession with intent to distribute

500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1);

841(b)(1)(B)(ii), Orestes Cabrera appeals the district court’s denial of his motion

to withdraw his guilty plea. Cabrera argues that the district court erred by

disregarding his claim that he should be permitted to withdraw his guilty plea

because defense counsel did not explain to him that a pre-plea motion could be

filed to suppress the cocaine found in the rental vehicle he was driving when

police stopped him. Cabrera contends that if he had known that he could file a

suppression motion, he would not have entered a guilty plea. Cabrera also argues

that, regardless of whether he was correct in his belief that such a motion would

have been granted, his counsel was ineffective for never informing him that he

could challenge the search and seizure.

      We will begin by noting that the government mischaracterized Cabrera’s

argument as an ineffective-assistance-of-counsel claim. Cabrera is actually

challenging the district court’s failure to allow him to withdraw his plea, arguing

that the district court erred in refusing to address his claim that, but for counsel’s

failure to advise him of the availability of a suppression motion, he would not

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have pled guilty. Cabrera is therefore entitled to face the “fair and just” plea

withdrawal standard, rather than “the Strickland standard” used for deciding

ineffective-assistance claims.1

      The district court may permit a defendant to withdraw a guilty plea before

the court imposes a sentence if the defendant “can show a fair and just reason for

requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). We review the district

court’s decision to deny a defendant’s motion to withdraw a guilty plea for abuse

of discretion. United States v. McCarty, 99 F.3d 383, 385 (11th Cir. 1996). “The

district court may be reversed only if its decision is arbitrary or unreasonable.”

United States v. Buckles, 843 F.2d 469, 471 (11th Cir. 1988). The good faith,

credibility, and weight of the defendant’s representations in support of the motion

to withdraw are issues for the trial court to decide. Id. at 472. “An appellate court

must review the record of the Rule 11 hearing as a whole and affirm the district

court if the record provides a basis for the court’s finding that the defendant

understood what he was admitting and that what he was admitting constituted the

crimes charged.” United States v. Siegel, 102 F.3d 477, 480 (11th Cir. 1996).

      Three core due process concerns underlie Rule 11: (1) the guilty plea must

be free from coercion; (2) the defendant must understand the nature of the charges;


      1
          Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).

                                                   3
and (3) the defendant must know and understand the direct consequences of his

plea. United States v. Mosley, 173 F.3d 1318, 1322 (11th Cir. 1999). If one of the

core concerns is not satisfied, then the guilty plea is invalid. Siegel, 102 F.3d at

481. While provisions of the rule of criminal procedure regarding withdrawal of a

guilty plea before sentencing should be construed and applied liberally, see United

States v. Rasmussen, 642 F.2d 165, 167 (11th Cir. 1981), there is no absolute right

to withdraw a guilty plea, United States v. Medlock, 12 F.3d 185, 187 (11th Cir.

1994). There is a strong presumption that statements made by a defendant during

the plea colloquy are true. Medlock, 12 F.3d at 187. Consequently, a defendant

bears a heavy burden to show that his statements under oath were false. United

States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988). In determining if the

defendant has met his burden to show a “fair and just reason” for plea withdrawal,

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 if the defendant were allowed to withdraw his

plea. Buckles, 843 F.2d at 472.

      After reviewing the transcript of the Rule 11 hearing, we are convinced that

Cabrera’s plea was free from coercion; that Cabrera understood the nature of the

                                           4
charges; and that Cabrera knew and understood the direct consequences of his

plea. Because Cabrera received close assistance of counsel and entered his plea

knowingly and voluntarily, he failed to show a fair and just reason why his motion

to withdraw his plea should have been granted. Therefore, the district court did

not abuse its discretion by denying the motion and accordingly, we affirm.

      AFFIRMED.




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