                                                                       [DO NOT PUBLISH]




                  IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                            FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                              ________________________   ELEVENTH CIRCUIT
                                                             MAY 28, 2008
                                                          THOMAS K. KAHN
                                    No. 06-13064
                                                               CLERK
                               ________________________

                         D. C. Docket No. 05-00026-CR-5-MCR

UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                            versus

MICHAEL EDWARD PAIR,

                                                                Defendant-Appellant.

                               ________________________

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

                                       (May 28, 2008)

Before EDMONDSON, Chief Judge, KRAVITCH and ALARCÓN,* Circuit
Judges.

PER CURIAM:

       *
        Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
      Michael Edward Pair appeals his conviction and sentence following a guilty

plea for manufacturing or possessing with intent to distribute 5 or more grams of

methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(viii).

                                          Background

      On May 12, 2005, authorities searched Pair’s home and seized 7.88 grams of

methamphetamine and methamphetamine laboratory equipment including

pseudoephedrine, glass and Teflon jars containing methamphetamine solutions,

muriatic acid, a scale, glass tubes, dishes, and bowls. Pair’s fingerprints were lifted

off several of the items. A portion of the 7.88 grams was “ice;”1 the amount of

methamphetamine that was not “ice” totaled less than 5 grams.

      On August 2, 2005, a grand jury indicted Pair and his co-defendant and

girlfriend Rhonda Michelle Couch (“Couch”) for (1) conspiracy to manufacture,

distribute, and possess with intent to distribute more than 5 grams of actual

methamphetamine (“Count 1”), and (2) manufacturing and possession with intent

to distribute more than 5 grams of actual methamphetamine (“Count 2”).

      During a brief recess before jury selection was to begin on November 14,

2005, Pair and the prosecutor reached an oral agreement whereby Pair would

cooperate and plead guilty to Count 2 in exchange for a dismissal of Count 1 and



      1
          “Ice” is a term for a certain type of methamphetamine.

                                                 2
dismissal of the charges against Couch. The court then placed Pair under oath and

conducted a Rule 11 colloquy. The court asked Pair about his background,

education, whether he had any history of mental illness, and whether he was under

the influence of any medications or drugs. The court then informed Pair of his

constitutional rights that he was waiving, including his right to trial, counsel,

testify, and appeal. The judge also read the indictment, confirmed with Pair that

those were the charges he faced, and informed Pair of the statutory mandatory

minimum sentence he faced.

      At that point, the court asked Pair if he had any questions. Pair stated that he

did. He asked whether the Government would enter into a sentencing agreement

and to that question the judge responded that it was up to the prosecutor. After

Pair’s counsel stated that the prosecutor’s office would not do it, the judge stated,

“[The prosecutor] is telling you he won’t do it—or his office won’t do it.”

      The judge, defense counsel, and defendant then had a discussion about

whether the prosecutor’s office could agree to a sentence recommendation. During

that discussion, the judge stated that “We need to make [the decision as to whether

to plea or go to trial] soon because I’ve got people downstairs that either need to

come up here for jury selection or need to be sent home. But if you want to go

forward with your trial, that’s what we’ll do, but it will be as to [the] indictment.



                                           3
I’m assuming it will be to the indictment.”

      Pair then asked the judge how much difference pleading guilty would make

to his sentence. Pair indicated that he did not feel he was getting a benefit by

entering a plea. At that point, the judge and Pair’s attorney explained that the

prosecutor could file a substantial assistance motion and that the Government

could recommend a downward departure. The judge stated that such a motion was

“entirely up to the United States Attorney’s Office. I have no role in the decision

and neither does [the prosecutor].” The judge stated, however, that the final

decision would be left to the court. The judge then said, “If you go to trial and are

convicted, found guilty by a jury, I’ve never seen it happen where someone

receives the benefit of [such a motion] after having gone to trial. I’ve never seen

it.” Pair stated that he understood this.

      The court then sought to determine if a sufficient factual basis existed to

support a guilty plea. The judge had the prosecutor read the facts the Government

intended to prove and Pair agreed with those facts. Pair and the judge then had a

discussion about the weight of the methamphetamine and whether Pair

manufactured it with the intent to distribute it. Pair admitted that he had possessed

7.88 grams and the judge asked if Pair had intended to manufacture the

methamphetamine with the intent to distribute. The judge stated that “distribute



                                            4
doesn’t necessarily mean to sell.” Pair responded, “Right. I thought I was pleading

to the second one.” Defense counsel then explained to Pair that he was pleading to

the second count. The judge stated, “And that is the charge in Count 2. It is not a

conspiracy count, but is a charge of manufacturing. Pair responded, “It’s saying I

manufactured,” and then requested time to speak to his counsel. After they spoke,

Pair asked the court, “I understood the question to be did I manufacture that with

the intent to distribute. I did manufacture it.”

      As for the distribution element, the judge asked if Pair manufactured it with

the intent to distribute it. Pair’s counsel responded, “That’s the toughest question

the court’s [asked]. That’s our defense.” The judge replied, “Well, he doesn’t

have any defense if he goes forward with the plea.” After some further discussion,

the judge told Pair what constituted “distribution”; she stated, “You don’t

necessarily have to go out on the street and make a sale or go to a stranger and

make a sale. You can have a party and let someone share in your

methamphetamine. That would be distribution. . . . If you shared it, then you’re

distributing it.” Pair stated that his intention with the methamphetamine was to

“smoke it up” with “whoever happened to be there.” The judge then stated that

there was enough evidence to support a guilty plea to Count 2 and Pair pleaded

guilty to the charge.



                                            5
       Before Pair’s sentencing hearing, however, he filed a motion to withdraw his

guilty plea. Among other things, he stated that he was not adequately advised of

the nature of the charge against him (in violation of Rule 11) and that he did not

understand the relation between the law and the facts that he admitted in pleading

guilty. The district court denied the motion following a hearing.

       Pair then sought to represent himself pro se with the assistance of standby

counsel. The court held a hearing on Pair’s motion to proceed pro se. The court

asked Pair about his education and training as a military technician, whether he had

a history of mental illness, and his prior experience with court-appointed counsel.2

The court told Pair that if he proceeded without counsel that he would still be

required to follow the rules of procedure and evidence and that, as a prisoner, he

had limited access to legal research materials. Pair stated that he understood this.

The court also informed Pair that the court was of the opinion that it was not “in

your best interest to proceed” pro se. The court warned Pair that criminal

sentencing in the federal courts is complicated and that because he did not have

any training or experience in the application of the Guidelines there was “a huge

risk . . . in going forward without counsel.” Stating that he understood these risks,

Pair reaffirmed his desire to proceed pro se and the judge granted Pair’s motion.


       2
         Pair had appointed counsel on at least two prior occasions; once, counsel won a motion
to suppress.

                                               6
       Before the sentencing hearing, Pair filed a Motion for Independent Testing

of the methamphetamine. He filed the motion on April 10, 2006 3—several months

after his November 2005 guilty plea and well after the August 15, 2005 discovery

order in which the court ruled that all pretrial motions were to be filed within 10

days of the order. The court denied Pair’s motion as moot since he had already

pleaded guilty to the offense.

       Although the applicable Guidelines range was 70 to 87 months, Pair faced

and received the statutory minimum sentence of 120 months.

       On appeal, Pair claims that (1) the court improperly participated in Pair’s

plea negotiations; (2) he did not understand the nature of the charges to which he

pleaded guilty and, therefore, the court improperly denied his motion to withdraw

his guilty plea; (3) the judge erred by denying the motion to permit independent

testing of the methamphetamine; and, (4) the judge erred by permitting Pair to

proceed pro se. We discuss each claim in turn.

                                           Discussion

A. Improper participation in the plea discussion

       Pair contends on appeal that the district court impermissibly participated in

the plea negotiation because the judge (1) implied without asking the Government


       3
         It was originally filed on March 24, 2006 but was not accepted because of filing
deficiencies; Pair was able to correct these deficiencies and re-filed it on April 10, 2006.

                                                 7
that the Government would not agree to a sentencing agreement, (2) coerced the

guilty plea by hurrying Pair, (3) stated that she had never seen a downward

departure motion made following a jury trial and conviction, and (4) implied that

Pair would not prevail at trial because he did not have any defense if he proceeded

with a guilty plea.

       A judge cannot participate in the plea discussions between the Government

and a criminal defendant. Fed. R. Crim. P. 11. Because Pair did not object at the

district court to improper judicial participation in the plea, we review Pair’s

contention under the plain error standard. See United States v. Vonn, 535 U.S. 55,

59 (2002). Under plain-error review, the defendant has the burden to show that

“there is (1) “error” (2) that is “plain” and (3) that it “affect[s] substantial rights.”

United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003). The Supreme

Court has held that in order to meet the third prong, a “defendant who seeks

reversal of his conviction following a guilty plea on the ground that the district

court committed plain error under Rule 11 must show a reasonable probability that,

but for the error, he would not have entered the plea.” United States v. Dominquez

Benitez, 542 U.S. 74, 83 (2004). Additionally, once the defendant has established

the first three prongs, the reviewing court may then exercise its jurisdiction and

correct the error, but only if it “seriously affects the fairness, integrity, or public



                                             8
reputation of the judicial proceedings.” United States v. Olano, 507 U.S. 725, 732

(1993).

       Pair argues that the judge’s statements were coercive and, therefore,

erroneous, and that this error is plain. Pair does not, however, suggest that there is

a reasonable probability that the judge’s statements were a “but for cause” of the

guilty plea. In fact, a reading of the transcript suggests otherwise.

       Pair and the prosecutor had already reached an agreement before the judge

made the allegedly improper comments; further, those comments stem from

questions Pair asked about his sentence and what benefits he would receive by

pleading guilty. The judge’s comments were all made in response to questions Pair

asked the court. Thus, Pair has not met his burden to convince this court with “a

reasonable probability” that the district judge’s comments were the “but for cause”

of his guilty plea.

B. Withdrawal of the guilty plea

       Pair next contends that the court erred in its denial of his motion to withdraw

the guilty plea.

       We review the denial of a request 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



                                           9
unreasonable. Id.

      A district court may permit a defendant to withdraw his guilty plea before

the imposition of a sentence for a “fair and just reason.” Fed. R. Crim. P.

11(d)(2)(B). In determining whether a defendant has shown a “fair and just

reason,” the district court evaluates the totality of the circumstances, 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 were allowed to

withdraw his plea.” Najjar, 283 F.3d at 1318. “Moreover, when a district court

accepts a guilty plea, it must ensure that the three core concerns of Rule 11 . . .

have been met: (1) the guilty plea must be free from coercion; (2) the defendant

must understand the nature of the charges; and (3) the defendant must know and

understand the consequences of his guilty plea.” Id. (citation and quotation marks

omitted).

      Pair asserts that the district court erred in its determination that Pair

understood the nature of the charges against him. More specifically, Pair claims

that he did not understand the nature of the “distribution” or “manufacturing”

elements of the crime. Pair, however, does not effectively show exactly how he

misunderstood the “distribution” element. As for the “manufacturing” element, he



                                           10
claims that he meant to plead guilty to “manufacturing” but he did not manufacture

that portion of the methamphetamine that was “ice.”

       Rule 11 requires that a defendant must understand the nature of the charges

against him. United States v. Jones, 143 F.3d 1417, 1418-19 (11th Cir. 1998). But

the law does not require that the defendant pleading guilty must understand all the

nuances of the law:

       For simple charges such as those in this case,4 a reading of the
       indictment, followed by an opportunity given the defendant to ask
       questions about it, will usually suffice. Charges of a more complex
       nature, incorporating esoteric terms or concepts unfamiliar to the lay
       mind, may require more explication. In the case of charges of extreme
       complexity, an explanation of the elements of the offense like that
       given the jury in its instructions may be required; this, of course, is the
       outer limit, for if an instruction informs a jury of the nature of the
       charge sufficiently for it to convict the defendant of it, surely it
       informs the defendant sufficiently for him to convict himself.

See United States v. Dayton, 604 F.2d 931, 937-38 (5th Cir. 1979) (en banc).5

       “‘[T]here is no one mechanical way or precise juncture to which a district

judge must conform in advising a defendant of the charges to which he is pleading

guilty.” United States v. Mosley, 173 F.3d 1318, 1322 (11th Cir. 1999). Instead,

we assess each plea colloquy individually in the context of the entire record,

       4
           The charge in Dayton was possession with intent to distribute marijuana.
       5
         The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d
1206, 1209 (11th Cir. 1981), adopted as precedent decisions of the former Fifth Circuit rendered
prior to October 1, 1981.


                                                 11
examining such factors as the “simplicity or complexity of the charges and the

defendant's sophistication and intelligence.” Id. at 1323. “These matters are better

committed to the good judgment of the district judge, who observes the

defendant’s demeanor, life experience, and intelligence.” Id.

      After reviewing the transcripts of Pair’s Rule 11 plea colloquy and the

hearing on his motion to withdraw the plea, we cannot say that the district court’s

denial was either arbitrary or unreasonable. The court complied with Rule 11.

Pair’s offense was a “simple charge”; thus, to satisfy Rule 11 under our binding

precedent, the court had to read the indictment and provide an opportunity for Pair

to ask questions. See United States v. Sanchez, 650 F.2d 745, 747-748 (5th Cir.

1981) (a reading of the indictment and the opportunity for the defendant to ask

questions was sufficient to comply with Rule 11 where twenty-five year old

migrant worker with seventh grade education and no criminal record was charged

with possession with the intent to distribute marijuana). Here, the judge read the

indictment and asked Pair if he understood the charges he faced. Pair said he did.

The court also asked Pair if he had any questions.

      Moreover, Pair’s counsel and the court explained to Pair that the

“distribution” element could be satisfied by showing that Pair intended to share the

drugs with others. Pair also had ample opportunity to consult with his attorney and



                                         12
Pair stated that he had discussed the plea with his counsel. Pair had “a couple of

years” of college and had received training as an electronics technician in the

Navy. Given Pair’s experience as a defendant in prior criminal cases, his age, and

his educational experience and training, we cannot say that the district court erred.

C. Independent testing of the methamphetamine

      Pair further contends that the district court erred by denying his motion to

independently test the methamphetamine. Pair argues that he wants to perform

testing to determine the amount of impurities, the weight, and whether the

methamphetamine is “L” methamphetamine or “D” methamphetamine. He does

not argue that the Government’s weight calculation is incorrect; he just asserts that

he has a due process right to test the substance and that the district court denied

him the opportunity to exercise this right.

      Pair’s Motion for Independent Testing was untimely, as it was filed well

after the district court’s August 2005 discovery deadline and after he pleaded

guilty. We, therefore, review the denial of Pair’s motion under the plain error

standard. United States v. Olano, 507 U.S. 725, 731-733 (1993) (forfeited claim of

constitutional violation will be reviewed under the plain error standard); see also

Fed. R. Crim. P. 12(c) (the district court can set a deadline for all pre-trial

motions).



                                            13
       A defendant in a prosecution for a drug offense has a due process right to

have an expert perform an independent analysis of the seized substance. See

United States v. Nabors, 707 F.2d 1294, 1296 (11th Cir. 1983) (emphasis added).

But a defendant does not have the same degree of due process protections at

sentencing. United States v. Satterfield, 743 F.2d 827, 840 (11th Cir. 1984) (“The

sole interest being protected is the right not to be sentenced on the basis of invalid

premises or inaccurate information. Because the sentencing procedure is not a

trial, courts have limited this right in order to prevent the sentencing hearing from

becoming a full-scale evidentiary hearing”).

       Pair has not met his burden. Our due process concern that a defendant “not

be sentenced on the basis of invalid premises or inaccurate information” does not

come into play in this case because Pair makes no argument that he was sentenced

on either invalid premises or inaccurate information. See Id. He does not argue,

for example, that the Government’s laboratory equipment malfunctioned or that the

weight is inaccurate. Nor is the distinction between “L” methamphetamine and

“D” methamphetamine legally significant in any way. Pair has certainly not shown

plain error.

D. Pair’s self-representation

       Pair argues that the court erred by allowing him to represent himself. He



                                           14
states that the court should allow a defendant to represent himself only after a full

inquiry into whether a waiver of the right to counsel is knowing, voluntary, and

intelligent. Pair claims that the court did not inquire sufficiently.

        The waiver of the right to counsel must be knowing, voluntary, and

intelligent. United States v. Cash, 47 F.3d 1083, 1088 (11th Cir. 1995). This is a

mixed question of law and fact that we review de novo. Id. The Government bears

the burden of proving the validity of the waiver. Id.

      If the record establishes that the defendant knew what he was doing and that

his decision was “made with open eyes,” this court will not overturn a district

court’s decision to allow a defendant to proceed pro se. See Faretta v. California,

422 U.S. 806, 835 (1975). We look at the record to ascertain whether the

defendant was made aware of the dangers of proceeding pro se and whether he

understood the decision he made. Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065

(11th Cir. 1986). To determine whether the waiver is “knowing, voluntary, and

intelligent,” we consider several factors; they are: (1) the defendant’s age,

educational background, and physical and mental health; (2) the extent of the

defendant’s conduct with lawyers prior to trial; (3) the defendant’s knowledge of

the nature of the charges, possible defenses, and penalties; (4) the defendant’s

understanding of the rules of procedure, evidence, and courtroom decorum; (5) the



                                           15
defendant’s experience in criminal trials; (6) whether standby counsel was

appointed and the extent to which that counsel aided the defendant; (7) any

mistreatment or coercion of the defendant; and (8) whether the defendant was

trying to manipulate the events of trial. Cash, 47 F.3d at 1088-89. All factors do

not need to point in the same direction, and the district court should hold a hearing

to examine these factors. Id.

       Here, Pair had a hearing in which these factors were considered. The court

cautioned Pair that proceeding pro se was not in his best interest and that it

involved a “huge risk.” The court warned him that sentencing is complex and that

it involves factual and legal issues that call for the assistance of an experienced

attorney. Pair acknowledged this at the hearing and stated that he recognized that

he was not such a person. The court inquired into Pair’s education, whether he had

any mental illnesses, the extent of his contact with lawyers, Pair’s understanding of

the charges and the possible penalty range, his experience at criminal trials, and

whether standby counsel would be available. The judge found, and the record

indicates, that Pair was not coerced and that he knew what he was doing. We are

satisfied that the district court did not err.

       Accordingly, we AFFIRM.




                                             16
