              Case: 12-15596     Date Filed: 09/26/2013    Page: 1 of 6


                                                            [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-15596
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 5:11-cr-00007-LGW-JEG-1

UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,

                                        versus


RUDOLPH V. ORANGE,
a.k.a. Big,
                                                            Defendant-Appellant.

                           ________________________

                    Appeal from the United States District Court
                       for the Southern District of Georgia
                          ________________________

                                (September 26, 2013)

Before DUBINA, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

      Appellant Rudolph Orange (“Orange”) appeals his conviction and sentence

for possession of cocaine with intent to distribute, in violation of 21 U.S.C.

§§ 841(a)(1) and 846. Orange argues that the district court abused its discretion by
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denying his motion to withdraw his guilty plea because his plea counsel was

ineffective. He also contends that his sentence was substantively unreasonable.

Finally, Orange filed a motion to remand this case to the district court because of

an intervening change in law. For the reasons that follow, we affirm Orange’s

conviction and sentence and deny Orange’s motion to remand.

                                            I.

      A federal grand jury indicted Orange on three counts: (1) conspiracy to

possess with intent to distribute 280 grams or more of crack cocaine; (2)

possession with intent to distribute 280 grams or more of crack cocaine; and (3)

aiding and abetting the distribution of crack cocaine. Under the representation of

court-appointed counsel, Orange agreed to plead guilty to the lesser included

offense of possession with intent to distribute more than 28 grams of crack

cocaine, pursuant to a written plea agreement. The plea agreement included a

limited appeal waiver, which provided that Orange waive the right to appeal his

conviction and sentence except on the ground that his sentence exceeded the

statutory maximum or his sentence was higher than the advisory sentencing

guideline range.

       During the Rule 11 hearing, the district court explained the burden of proof,

the presumption of innocence, Orange’s right to an attorney, his right to plead not

guilty, his right to a jury trial, and the rights associated with trial. The district court


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also stated that by pleading guilty, Orange was waiving those rights. The district

court informed Orange that the penalty could be between 5 and 40 years’

imprisonment and explained that any promise or estimation of Orange’s sentence

was not binding on the court. Finally, the district court explained the significance

of the appeal waiver contained in the plea agreement. The district court then asked

Orange if he understood the rights he was giving up, the potential penalty he faced,

and the effect of the appeal waiver. Orange stated that he did. The district court

thereafter concluded that Orange’s guilty plea was made knowingly and

voluntarily.

      After his Rule 11 plea colloquy, Orange entered a plea of guilty. Following

issuance of an initial presentence investigation report, which reflected his advisory

guidelines range, Orange wrote to the district court requesting to withdraw his

guilty plea due to ineffective assistance of counsel and to be appointed new

counsel. The district court eventually appointed new counsel but declined to rule

definitively on the issue of counsel’s performance. After a separate hearing on

Orange’s motion to withdraw his guilty plea, the district court denied the motion.

Later, the court sentenced him to serve 324 months’ imprisonment. This appeal

followed.

                                         II.




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      “We review the denial of a request to withdraw a guilty plea for abuse of

discretion.” United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006)

(internal quotation marks omitted). “There is no abuse of discretion unless the

denial is arbitrary or unreasonable.” Id. (internal quotation marks omitted).

      We review a defendant’s waiver of his right to appeal his sentence de novo.

United States v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993). Finally, we review

the district court’s sentence for abuse of discretion. See United States v. Irey, 612

F.3d 1160, 1188 (11th Cir. 2010).

                                         III.

      First, Orange contends that the district court abused its discretion in failing

to grant his request to withdraw his guilty plea. There is no absolute right to

withdraw a guilty plea before imposition of a sentence, and the decision is left to

the sound discretion of the district court. United States v. Buckles, 843 F.2d 469,

471 (11th Cir. 1988). After a district court has accepted a plea and before

sentencing, a defendant may withdraw a guilty plea if he can demonstrate “a fair

and just reason for requesting the withdrawal.” FED. R. CRIM. P. 11(d)(2)(B). The

district court should consider the totality of the circumstances surrounding the plea,

including: “(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


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were allowed to withdraw his plea.” Buckles, 843 F.2d at 471–72 (citation

omitted). We have held that failure to advise a defendant of his eligibility as a

career offender is not per se deficient and must be determined by the facts and

circumstances of the case. United States v. Pease, 240 F.3d 938, 941–42 (11th Cir.

2001) (affirming the denial of a motion to withdraw a guilty plea although counsel

misrepresented the defendant’s potential sentence because the defendant was

informed at the plea colloquy that any sentencing estimate was not binding on the

court).

       We conclude from the record that the district court did not abuse its

discretion in refusing Orange’s request to withdraw his guilty plea. The district

court made specific findings that: (1) he had the close assistance of counsel; (2)

his plea was both knowing and voluntary; (3) permitting withdrawal would not

conserve judicial resources; and (4) withdrawal would create some prejudice for

the government. Furthermore, the record reflects that before entering his plea,

Orange understood his sentence could be anywhere between 5 and 40 years. He

also swore, under oath, that no one promised him an exact sentence and that he

understood that any representations about his sentence were just estimates and not

binding upon the court. In sum, there is no merit to any of Orange’s arguments as

to this issue.

                                         IV.


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       Orange also argues that his sentence was substantively unreasonable, but his

argument is foreclosed by the enforceable appeal waiver in his plea agreement. An

appeal waiver contained in a plea agreement must be knowing and voluntary to be

effective. Bushert, 997 F.2d at 1350. An appeal waiver is made knowingly and

voluntarily if: “(1) the district court specifically questioned the defendant

concerning the sentence appeal waiver during the [Rule 11] colloquy, or (2) it is

manifestly clear from the record that the defendant otherwise understood the full

significance of the waiver.” Id. at 1351.

       The district court adequately and specifically addressed the sentence appeal

waiver at the Rule 11 hearing. Orange stated that he understood the rights he was

waiving and still wished to plead guilty. The record demonstrates that this waiver

was knowing and voluntary, and therefore, Orange may not challenge the

reasonableness of his below-guideline range sentence here.

                                                V.

       Accordingly, upon review of the record and the parties’ briefs, we affirm

Orange’s conviction and sentence.

       AFFIRMED. 1



       1
         Orange also filed a motion to remand in light of the recent Supreme Court decision
Peugh v. United States, -- U.S. --, 133 S. Ct. 2072 (2013). Peugh is inapplicable to this case
because Orange’s guideline range would be the same whether he was sentenced under the
version of the guidelines in effect when he committed the crime or at the time of sentencing.
Therefore, we deny the motion to remand.
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