                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              January 24, 2008
                              No. 07-11423                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                     D.C. Docket No. 06-60123-CR-UUB

UNITED STATES OF AMERICA,

                                                                Plaintiff–Appellee,

                                   versus

RICHARD PIERRE CAMBRONNE,

                                                          Defendant–Appellant.


                        ________________________

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

                             (January 24, 2008)


Before BIRCH, DUBINA, and BARKETT, Circuit Judges.

PER CURIAM:

     Richard Pierre Cambronne appeals his conviction and sixty-month sentence
for possession of more than five grams of crack cocaine, in violation of 21 U.S.C.

§ 844(a). At his sentencing hearing, Cambronne moved to withdraw his guilty plea

alleging that new evidence had surfaced, which related to the veracity of the police

officers who testified at his suppression hearing. Cambronne also sought to qualify

for a reduction in his sentence, pursuant to the safety-valve provision of the

Guidelines, asserting that he was not aware that a gun was in his car at the time of

his arrest. U.S.S.G. § 5C1.2. The district court denied both requests, and

Cambronne now appeals both denials.

      As an initial matter, we find no merit to the government’s suggestion that

Cambronne did not properly move the district court to withdraw his guilty plea and

to apply a safety-valve adjusment. The transcript of the sentencing hearing reflects

that he requested such relief, that the district court understood him to request such

relief, and that the district court denied both requests.

      We review the denial of Cambronne’s motion to withdraw his guilty plea for

an abuse of discretion. United States v. Freixas, 332 F.3d 1314, 1316 (11th Cir.

2003). “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). “A

defendant may withdraw a plea of guilty . . . after the court accepts the plea, but

before it imposes sentence if . . . the defendant can show a fair and just reason for



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requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). The “fair and just

reason” standard should be liberally construed, but there is no absolute right to

withdraw a guilty plea before sentencing. Buckles, 843 F.2d at 471. To determine

whether a defendant has shown a “fair and just reason,” a district court may

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 the

defendant were allowed to withdraw his plea.” Id. at 471–72. Among other

factors that we have considered are the defendant’s admission of factual guilt under

oath at a plea hearing and the timing of the motion to withdraw. United States v.

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

      The testimony at Cambronne’s suppression hearing reflects the following:

While stopped at a 7-Eleven convenience store, Detectives Neese and Reid decided

to investigate a suspiciously parked vehicle, the license plate number of which did

not match the vehicle. Neese testified that he walked to the driver’s side of the car

and observed what he believed to be marijuana on the center console. At that time,

Reid was talking to the individual in the car, who the detectives later learned was

Cambronne. Eventually, Reid took Cambronne out of the vehicle while Neese


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called for a canine narcotics search. Officer Clark eventually arrived with a

narcotics canine, which alerted the officers to the potential presence of contraband

under the driver’s seat of the car. Neese testified that he discovered a handgun and

a bottle of crack cocaine beneath the driver’s seat of the car. According to Neese’s

testimony, a tow truck arrived to take Cambronne’s car into police custody. On the

basis of Neese’s and Reid’s testimony regarding the course of events, the district

court denied Cambronne’s motion to suppress.

      Cambronne eventually pleaded guilty, but, at the sentencing hearing, he

sought to withdraw his plea, claiming that after the suppression hearing, he and his

attorney learned that the tow-truck driver discovered the bottle of crack cocaine in

the course of preparing to tow the car and called the police to recover it.

Cambronne argues that this casts doubt on the detectives’ veracity at the

suppression hearing, as they omitted mention of the tow-truck driver’s involvement

in the discovery of the crack cocaine. Cambronne’s request to withdraw his guilty

plea came approximately one month after speaking to the tow-truck driver.

      In rejecting Cambronne’s motion to withdraw his guilty plea, the court noted

that the truck driver’s testimony would not address Cambronne’s guilt or

innocence in the case. The district court noted the seeming misconduct of the

detectives but denied Cambronne’s motion on the basis of his admission of factual


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guilt and the fact that the new evidence would not affect the “result,” presumably

of a new suppression hearing. We find no error in the district court’s ruling as

Cambronne does not explain how the tow-truck driver’s testimony would plausibly

change the district court’s denial of Cambronne’s motion to suppress.

Accordingly, the balance of the Buckles factors support the district court’s ruling.

      Cambronne next argues that the district court erred in failing to sentence him

below the statutory minimum by way of a safety valve adjustment under § 5C1.2

of the Guidelines. We review the district court’s factual determinations under

§ 5C1.2 for clear error, United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir.

1997), and we review the district court’s interpretation and application of the

guidelines de novo. United States v. Matos-Rodriguez, 188 F.3d 1300, 1309 (11th

Cir. 1999). Section 5C1.2(a) enables a court to sentence below the statutory

minimum for an offense if a defendant meets five conditions, including the

requirement that “the defendant did not . . . possess a firearm . . . in connection

with the offense.” U.S.S.G. § 5C1.2(a)(2). We have considered the phrase “in

connection with” in other contexts and concluded that it should be given an

“expansive interpretation.” Matos-Rodriguez, 188 F.3d at 1308–09.         In Matos-

Rodriguez, for example, we affirmed a district court’s determination that a

defendant possessed a gun “in connection with” the delivery of counterfeit


                                           5
currency by taking the gun with him to make the delivery, even though he did not

in fact use the gun. Id. at 1308–09.

      Here, Cambronne argues that although the gun was found in close proximity

to the contraband beneath the driver’s seat of his car, he was unaware of its

presence, as he normally kept it at home. Cambronne argues that the district court

was inclined to apply the safety-valve adjustment to his sentence but erroneously

felt constrained by the gun’s proximity to the contraband in Cambronne’s car,

whether or not Cambronne knew the gun was in the car. Although we have

affirmed inferences of such knowledge and findings that a gun was possessed “in

connection with” offenses without actual use, a defendant cannot be found to

possess a gun “in connection with” an offense without knowledge of the gun’s

presence. See, e.g., United States v. Jackson, 276 F.3d 1231, 1234–35 (11th Cir.

2001) (describing circumstances that convert simple possession of a firearm into

possession “in connection with” a particular offense). Because the record is

unclear as to whether the district court made a finding that Cambronne knew the

gun was in the car, we vacate the district court’s denial of Cambronne’s request for

a safety-valve adjustment and remand this issue for reconsideration of this issue.

      The government urges that we nonetheless affirm the district court’s denial

of Cambronne’s request for application of the safety valve on several grounds not


                                          6
considered by the district court. Whether or not the circumstances cited by the

government would support the factual findings that the government urges we adopt

in affirming on alternative bases, we decline that invitation and allow the district

court to consider in the first instance the factual issues it deems relevant on

remand.

      Therefore, we AFFIRM the district court’s denial of Cambronne’s motion to

withdraw his guilty plea, VACATE the denial of Cambronne’s request for a safety-

valve adjustment, and REMAND for further proceedings consistent with this

opinion.

AFFIRMED IN PART, VACATED IN PART, and REMANDED.




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