           Case: 16-10395   Date Filed: 07/11/2017   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-10395
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:15-cr-20531-UU-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

STEPHEN TELEMAQUE,
a.k.a. TMAC,

                                                         Defendant-Appellant.

                      ________________________

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

                             (July 11, 2017)

Before TJOFLAT, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Stephen Telemaque appeals his conviction for conspiracy to possess with

intent to distribute a detectable amount of ethylone. On appeal, he argues that the

district court abused its discretion in denying his motion to withdraw his guilty

plea. 1 He argues that his plea was not voluntary because he would not have

entered it absent the mistaken advice from counsel that the proper ethylone-to-

marijuana volume conversion ratio used in sentencing calculations was 1:500.

Upon review of the record and the parties’ briefs, we affirm Telemaque’s

conviction.

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

for an abuse of discretion. United States v. Symington, 781 F.3d 1308, 1312 (11th

Cir. 2015). A district court abuses its discretion if it fails to apply the proper legal

standard or to follow proper procedures in making the determination, if it makes

findings of fact that are clearly erroneous, or if the denial is arbitrary or

unreasonable. United States v. Izquierdo, 448 F.3d 1269, 1276 (11th Cir. 2006).

There is no absolute right to withdraw a guilty plea prior to imposition of a

sentence, and the decision of whether to permit withdrawal is left to the sound

discretion of the district court. United States v. Buckles, 843 F.2d 469, 471 (11th

Cir. 1988). Defendants seeking to withdraw a guilty plea after its acceptance but



1
       Other issues raised on appeal by Telemaque have been dismissed in a previous order of
this Court based on the sentence appeal waiver.
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prior to sentencing must show that there is a “fair and just reason” for doing so.

Fed. R. Crim. P. 11(d)(2)(B).

      In determining whether a defendant has met his burden to show a “fair and

just reason” to withdraw a guilty plea, 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 471-72. If an

appellant does not satisfy the first two factors of the Buckles analysis, we need not

thoroughly analyze the remaining factors. See United States v. Gonzalez-Mercado,

808 F.2d 796, 801 (11th Cir. 1987) (affirming a district court’s denial of a motion

to withdraw a guilty plea based on the first two factors, but declining to give

“considerable weight” to the third factor or “particular attention” to the possibility

of prejudice to the government).

      The good faith, credibility, and weight of a defendant’s assertions in support

of a motion to withdraw a guilty plea are issues for the trial court to decide. United

States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006). Statements made under

oath by a defendant during a plea colloquy receive a strong presumption of

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

Consequently, a defendant bears a heavy burden to show that his statements under


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

timing of an appellant’s motion to withdraw a plea also deserves consideration, as

it may be indicative of the defendant’s motivation. Gonzalez-Mercado, 808 F.2d at

801. A swift change of heart is a strong indication that the plea was entered in

haste and confusion. Id. To grant a motion to withdraw simply because a

defendant is wary of a harsher-than-contemplated sentence would be to permit the

defendant to use the guilty plea as a means of testing the weight of a potential

sentence, which is a primary ground for denying plea changes. Id.

      In assessing whether close assistance of counsel was available through plea

proceedings, we examine whether counsel was available and utilized. See United

States v. McCarty, 99 F.3d 383, 385 (11th Cir. 1996) (finding no abuse of

discretion where the district court, after hearing testimony regarding the

defendant’s allegedly involuntary guilty plea, concluded that he had been ably and

professionally represented and that close assistance of counsel was available and

utilized extensively).

      Under Rule 11, before a court can accept a guilty plea, it must inform the

defendant of his rights should he plead not guilty, the nature of the charges against

him, the potential penalties, the court’s obligation to calculate his advisory

guideline range, and the terms of any sentence appeal waiver in the plea

agreement. See Fed. R. Crim. P. 11(b)(1)(B)-(E), (G)-(N). The court must also


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explain that a guilty plea waives the defendant’s trial rights and ensure that the plea

is entered voluntarily and is supported by a sufficient factual basis. See id.

(b)(1)(F), (b)(2)-(3). Further, the court must explain that the defendant can be

prosecuted for perjury for testifying falsely under oath. See Fed. R. Crim. P.

11(b)(1)(A). Rule 11 does not require uncontroverted evidence of guilt. United

States v. Owen, 858 F.2d 1514, 1516–17 (11th Cir. 1988). Instead, Rule 11

requires “evidence from which a court could reasonably find that the defendant

was guilty.” Id. at 1517.

      We have affirmed the denial of a motion to withdraw a guilty plea based on

a defendant’s contention that he relied on his attorney’s underestimation of his

potential sentence under a plea agreement where the defendant was informed of the

applicable minimum and maximum penalties, that he could not rely on his

counsel’s prediction, and that the sentence actually imposed by the court could

differ from any estimate the defendant received from anyone, including his

attorney. United States v. Pease, 240 F.3d 938, 940-41 (11th Cir. 2001). We have

also held that a district court abused its discretion in denying a defendant’s motion

to withdraw a guilty plea that was based on incorrect statements in the plea

agreement that his prior convictions did not qualify as predicate offenses for

purposes of an enhanced sentence under the Armed Career Criminal Act and that

he faced a maximum penalty of ten years’ imprisonment. Symington, 781 F.3d at


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1310, 1314. In addition, we noted that the Symington district court twice

erroneously stated that it could sentence the defendant to a maximum of ten years’

imprisonment, and thus did not comply with Rule 11’s requirement to inform the

defendant of the possible maximum penalty of life imprisonment and the

mandatory minimum penalty of 15 years’ imprisonment that he would be subjected

to by pleading guilty. Id.

      Here, the district court did not abuse its discretion in denying Telemaque’s

motion to withdraw his guilty plea. First, Telemaque had the close assistance of

counsel because counsel was appointed before the superseding indictment was

returned, and counsel advised Telemaque about the charges against him, the

advisory sentencing guidelines, his plea agreement, and other matters about the

case to Telemaque’s satisfaction. That Telemaque’s counsel did not advise him of

the possibility of an ethylene conversion ratio of 1:250, based on a district court

case that had not yet been published before Telemaque entered his plea, did not

demonstrate that he lacked the close assistance of counsel.

      Second, Telemaque does not contend that the district court made any Rule

11 errors and never stated that he would not have pled guilty but for his counsel’s

allegedly defective advice about the ethylene conversion ratio. Dominguez

Benitez, 542 U.S. at 83. Telemaque has not shown that his affirmations at the plea

colloquy that he understood the terms of the plea agreement, that the court could


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impose a sentence more severe than the guidelines called for, and that he could not

withdraw his plea if the sentence was more severe than he expected were false.

Rogers, 848 F.2d at 168. Moreover, at sentencing, the district court released

Telemaque from the plea agreement provision requiring that he recommend a 151-

month sentence, which was the primary reason Telemaque gave for wanting to

withdraw his plea. And the district court calculated a lower guideline range based

on a 1:380 conversion ratio, and heard Telemaque’s argument that he should

receive a lower sentence. Monroe, 353 F.3d at 1350-52; Pease, 240 F.3d at 941.

Because Telemaque’s plea was knowing and voluntary and he had the close

assistance of counsel, we need not thoroughly analyze the remaining factors. See

Gonzalez-Mercado, 808 F.2d at 801.

      AFFIRMED.




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