                                                         [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                                                                    FILED
                          ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                   July 05, 2005
                                 No. 04-14955
                                                             THOMAS K. KAHN
                             Non-Argument Calendar               CLERK
                           ________________________

                      D. C. Docket No. 03-20674-CR-KMM

UNITED STATES OF AMERICA,


                                                                   Plaintiff-Appellee,

                                      versus

JAMES HIMICK,
a.k.a. Jerry LNU,

                                                             Defendant-Appellant.


                           ________________________

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

                                  (July 5, 2005)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     James Himick appeals his conviction and sentence for distributing ecstasy in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). On appeal, he argues that

the district court abused its discretion by denying his motion to withdraw his guilty

plea. He further argues that the district court erred by sentencing him as a “career

offender” under § 4B1.1 of the U.S. Sentencing Guidelines, after two of his

predicate state court convictions were vacated on constitutional grounds.

I.    Denial of Motion to Withdraw Guilty Plea

      Himick asserts that he provided to the court a “fair and just reason” for the

withdrawal of his plea. Fed. R. Crim. P. 11(d)(2)(B). Himick’s counsel confessed

error in failing to investigate Himick’s criminal history before advising him to

enter into a plea agreement with the government. As a result, Himick’s counsel

neglected to address the possibility of Himick qualifying for career offender status

under the sentencing guidelines. The government also admitted that it did not

consider whether Himick would qualify for a sentencing guideline enhancement

based on his criminal history. Himick argued that the government assured him that

it would not seek any sentencing enhancement. Furthermore, Himick asserted that

the government agreed that his punishment should not be overly harsh and that the

government was prejudiced when the district court refused to allow Himick to

withdraw his plea and enter a plea to the same lesser included offense to which his

codefendants were allowed to plead. Finally, Himick argued that the withdrawal



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would have had no effect on judicial resources, as he was willing to re-enter a plea

to a lesser included offense.

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

abuse of discretion.” United States v. Najjar, 283 F.3d 1306, 1307 (11th Cir.

2002). “We will reverse a district court’s decision on a motion to withdraw only if

it is arbitrary or unreasonable.” Id. “The good faith, credibility and weight” of the

defendant’s representations in support of the motion to withdraw are issues for the

district court to decide. United States v. Buckles, 843 F.2d 469, 472 (11th Cir.

1988).

         Pursuant to Federal Rule of Criminal Procedure 11(d)(2)(B), a defendant

may withdraw a guilty plea, after the district court has accepted the plea but before

sentencing, if “the defendant can show a fair and just reason for requesting the

withdrawal.” Accordingly, “[t]here is no absolute right to withdraw a guilty plea.”

United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994).

         In determining if the defendant has shown a “fair and just reason” for

withdrawal, 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



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government would be prejudiced if the defendant were allowed to withdraw his

plea.” Buckles, 843 F.2d at 472 (internal citations omitted). “There is a strong

presumption that statements made during the colloquy are true.” Medlock, 12 F.3d

at 187. A defendant, therefore, “bears a heavy burden to show that his statements

were false.” United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988).

Furthermore, a defendant’s reliance on an attorney’s mistaken impression about the

length of his sentence is insufficient to render a plea involuntary as long as the

court informed the defendant of his maximum possible sentence:

      To the extent that [a defendant] claimed his guilty plea was based on
      his attorney’s estimate of the sentence and offense level, the claim did
      not warrant withdrawal of the guilty plea where [the defendant]
      acknowledged to the court that he understood the possible maximum
      sentence for his crime to be greater than the sentence the court
      ultimately imposed.

United States v. Bradley, 905 F.2d 359, 360 (11th Cir. 1990).

      In the instant case, the district court did not abuse its discretion by denying

Himick’s motion to withdraw his plea. The district court made factual findings on

each of the Buckles factors before concluding that Himick had failed to show a fair

and just reason for the withdrawal. Regarding whether close assistance of counsel

was available to Himick, the district court considered but rejected Himick’s

argument that he should be allowed to withdraw his plea because his attorney

never advised him of the possibility of being sentenced as a career offender. Citing

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Bradley, the district court correctly explained that, to the extent that a defendant

claims his guilty plea was based on an attorney’s inaccurate estimate of the

sentence and offense level, this claim does not warrant withdrawal of the guilty

plea when the defendant acknowledges to the court that he or she understands the

maximum possible sentence for the crime. See Bradley, 905 F.2d at 360. The

district court also correctly noted that we have not recognized an exception to this

general rule for defendants who might qualify for career offender status. The

record of Himick’s plea colloquy shows that Himick acknowledged to the Court

that he understood the maximum possible sentence for his crime and that he

understood that his ultimate sentence could be greater than estimates given to him

by his attorney or anticipated by the parties, and ultimately greater than the actual

sentence imposed upon him. Thus, the district court found that Himick’s counsel’s

failure to advise him that he may be classified as a career offender did not amount

to ineffective assistance of counsel.

      The district court next determined that Himick knowingly and voluntarily

pled guilty. The court noted the transcript of Himick’s plea hearing, which

evidences that the court ensured that Himick was aware of the nature of the

charges, the consequences of the plea, and that the plea of guilty was a knowing

and voluntary plea supported by an independent basis in fact stating each of the



                                           5
essential elements of the offense. The district court implicitly rejected Himick’s

argument that he could not knowingly and voluntarily enter a guilty plea without

knowledge of the possibility of being sentenced as a career offender, explaining

that Himick’s fifteen prior arrests belie any claim that appearing before a judicial

officer was some kind of novel or apprehensive experience such that Himick did

not know what he was doing. The district court determined that Himick’s multiple

appearances attest to the conclusion that he knew precisely what he was doing

when he pled guilty.

      We disagree, however, with the district court’s conclusion that judicial

resources would be conserved by denying Himick’s motion to withdraw his plea.

Himick had agreed with the government that immediately upon the withdrawal of

his plea, he would enter a plea of guilty to the lesser included misdemeanor of

possession of ecstasy, thus obviating the need for a full trial. However, the court

noted that allowing Himick, who is a repeat offender, to withdraw his plea and

plead to a lesser offense would result in a lighter sentence. Given his record, the

court assumed that Himick would likely find himself back in court facing another

charge following his release and therefore concluded that judicial resources would

not be conserved by withdrawing his plea. We cannot agree with the district

court’s conclusion on this factor. Judicial resources would have been conserved by



                                           6
the withdrawal of Himick’s guilty plea because of the agreement between Himick

and the government that Himick would plead guilty to the lesser included offense

of possession, thereby obviating any need for a trial, though the conservation

would have been minimal. Although we disagree with the district court’s

conclusion with regard to the conservation of judicial resources, the totality of the

circumstances surrounding the plea nevertheless warrant a denial of Himick’s

motion.

      As to the final factor, the district court determined that the government

would not be prejudiced either way. At the time of its ruling, the government was

not opposed to Himick’s motion to withdraw his plea, and the parties had agreed

that Himick would plead to the lesser included offense of possession.

      Upon our review of the record, we can find no abuse of the district court’s

discretion in its Buckles analysis and its conclusion that Himick was not entitled to

withdraw his plea.

II.   Sentencing of Himick as Career Offender

      Himick next argues on appeal that the district court erred when it sentenced

him as a career offender pursuant to U.S.S.G. § 4B1.1. The government concedes

sentencing error here. To sentence Himick as a career offender, the district court

had to rely on at least one of Himick’s two state court convictions. Himick asserts



                                           7
that both of these convictions were vacated by the state court before Himick’s

federal sentencing in this case, and therefore could not be counted as predicate

offenses for career offender status. He further asserts that the state court record

was clear that the state order vacating his convictions was based on the

constitutional infirmity of the denial of effective assistance of counsel. Himick

asserts that the district court failed to consider all the application notes to U.S.S.G.

§ 4A1.2, one of which excepts constitutionally invalid prior convictions. Himick

also argues that he is entitled to resentencing in light of United States v. Booker,

543 U.S. __, 125 S. Ct. 738 (2005) and the district court’s use of the guidelines in a

mandatory fashion.

      “We review de novo the district court’s interpretation and application of

sentencing guideline provisions.” United States v. Lebovitz, 401 F.3d 1263, 1267

(11th Cir. 2005).

       A defendant qualifies as a career offender if, among other things, he “has at

least two prior felony convictions of either a crime of violence or a controlled

substance offense.” U.S.S.G. § 4B1.1(a)(3). Additionally, to constitute a prior

felony conviction under U.S.S.G. § 4B1.1, “the sentences for at least two of the

aforementioned felony convictions are counted separately under the provisions of

§ 4A1.1(a), (b), or (c),” U.S.S.G. § 4B1.2(c)(2), and “[t]he provisions of § 4A1.2



                                            8
(Definitions and Instructions for Computing Criminal History) are applicable to the

counting of convictions under § 4B1.1.” Id., cmt. n.3. Moreover, “[s]entences

resulting from convictions that . . . have been ruled constitutionally invalid in a

prior case are not to be counted.” U.S.S.G. § 4A1.2, cmt. n.6. Thus, for Himick to

have qualified as a career offender under U.S.S.G. § 4B1.1, he must have had at

least two prior countable felony convictions for either a crime of violence or a

controlled substance offense.

      In United States v. Guthrie, the Ninth Circuit considered Application Note 6

to U.S.S.G. § 4A1.2, holding

      [w]hen a state court vacates a defendant’s prior state conviction, the
      sentence resulting from that conviction may not influence the
      defendant's criminal history score under the Guidelines. The state
      court has plenary authority to vacate state convictions. Once the court
      vacates a conviction, that conviction expires in the eyes of the State.
      It would therefore be odd, and we believe contrary to the Guidelines,
      for a federal court to treat as valid a state conviction that no longer
      exists, even though the conviction is being considered for the limited
      purposes of federal sentencing. As in the present case, the district
      court may believe the state court’s decision overturning the prior
      conviction is incorrect, but that is beside the point, for the Guidelines
      are concerned only with the state court’s final determination, not with
      the soundness of its reasoning.

United States v. Guthrie, 931 F.2d 564, 572 (9th Cir. 1991) (footnote omitted)

(emphasis added).

      The district court erred by sentencing Himick as a career offender. Evidence



                                           9
in the record shows that Himick filed two state post-conviction motions to vacate

based on ineffective assistance of counsel. The Florida state attorney investigated

Himick’s claims, interviewed the lawyers who previously represented Himick in

the cases, and informed the state court judge that the state determined that

Himick’s constitutional claims had merit and warranted relief. Based on the record

before it, the state court judge accepted the state’s concession, granted Himick’s

motions, and vacated the pertinent state convictions. Under these circumstances,

the convictions could not be counted as predicate convictions for a career offender

enhancement, as they were vacated on constitutional grounds.

      The district court did not believe Himick’s state convictions were vacated on

constitutional grounds. Yet, it is clear from a review of the record that the state

court based its decision to vacate on 6th Amendment ineffective assistance of

counsel grounds. Thus, the court erred when it counted the vacated convictions to

determine that Himick qualified as a career offender: the “Guidelines are

concerned only with the state court’s final determination, not with the soundness of

its reasoning.” Guthrie, 931 F.2d at 572.

      Furthermore, the district court’s reliance on Application Note 10, U.S.S.G. §

4A1.2, as interpreted in Castillo v. United States, was misplaced. Application Note

10 provides that convictions set aside “for reasons unrelated to innocence or errors



                                            10
of law” are to be counted for purposes of determining career offender status.

U.S.S.G. § 4A1.2, cmt. n.10. The district court determined that Himick’s state

court convictions were vacated due to an agreement with the prosecutor – not

Himick’s innocence or an error of law – and therefore, Application Note 10

supported its decision to sentence Himick as a career offender.

      We interpreted Application Note 10 in Castillo v. United States, a case in

which the defendant challenged criminal history points attributed to him under

§ 4A1.2 based on a state conviction that was reversed and subsequently nolle

prossed. Castillo v. United States, 200 F.3d 735, 737 (11th Cir. 2000). We held

that “because [the defendant’s] previous conviction was reversed in a ruling

adverse to him and [the defendant] admitted that he was guilty of the conduct

underlying the prior charges, [the defendant’s] criminal history points should not

be recalculated.” Id. at 738. We distinguished Guthrie, noting “[the defendant in

Guthrie] challenged his sentence on constitutional grounds and his sentence was

vacated in a decision favorable to him.” Id. at 737 n.4. We recognized, however,

as did the Guthrie court, that uncountable convictions could still be used as the

basis for an upward departure pursuant to § 4A1.3. Id.

      Our precedent in Castillo does not require that Himick be sentenced as a

career offender. The district court’s conclusion that the state court orders vacating



                                          11
Himick’s convictions were rulings that were adverse to Himick is a conclusion that

is not supported by the record. In fact, the state court rulings that vacated Himick’s

convictions granted Himick the exact relief he requested in his post-conviction

relief motions. This case is distinguishable from Castillo for that reason: the state

court vacated Himick’s convictions in those cases with decisions favorable to

Himick. Thus, the district court erred when it refused to accept the fact that

Himick’s convictions were vacated on constitutional grounds.

      “[A]s was the case before Booker, the district court must calculate the

Guidelines range accurately. A misinterpretation of the Guidelines by a district

court effectively means that the district court has not properly consulted the

Guidelines.” United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir. 2005)

(internal quotation and citation omitted). “After it has made this calculation, the

district court may impose a more severe or more lenient sentence as long as the

sentence is reasonable, but the requirement of consultation itself is inescapable.”

Id. (citation omitted).

      Accordingly, we vacate and remand with instructions that the district court

calculate an advisory guideline range that does not apply a career offender

enhancement. Because Himick’s sentence must be vacated and remanded due to

the district court’s erroneous application of a career offender enhancement, we do



                                          12
not address his Booker challenge.

      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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