              Case: 12-12880     Date Filed: 02/05/2013   Page: 1 of 6

                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-12880
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket No. 6:11-cr-00375-GKS-DAB-2

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                       versus

STEVEN JUSTIN VILLALONA,

                                                               Defendant-Appellant.
                           ________________________

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

                                 (February 5, 2013)

Before DUBINA, Chief Judge, MARTIN and FAY, Circuit Judges.

PER CURIAM:

      Appellant Steven Villalona appeals the district court’s denial of his request

at sentencing to withdraw his guilty plea to one count of conspiracy to possess with

intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C.
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§§ 841(a)(1), (b)(1)(A)(ii)(II), and 846, and one count of aiding and abetting the

possession of a firearm during and in relation to a drug-trafficking crime, in

violation of 18 U.S.C. §§ 924(c)(1)(A) and 2. On appeal, Villalona argues that the

district court erred by denying his request to withdraw his guilty plea without

holding an evidentiary hearing. He argues that the record undermines his

statements at the plea hearing that he was satisfied with his counsel’s services;

rather, he contends that the record suggests that he was deprived of the close

assistance of counsel, pointing to his counsel’s failure (1) to move to withdraw his

guilty plea prior to the district court’s acceptance of it, when he would have had an

absolute right to withdraw, and (2) to communicate with him prior to sentencing.

He argues that the record is insufficiently developed to determine if his

communication with his counsel became strained prior to entry of the plea and

what impact that strain might have had on the entry of his guilty plea. However,

despite the state of the record, he asserts that it is sufficient to demonstrate that he

potentially was entitled to withdraw his plea. He asks that the case be remanded

for the district court to hold an evidentiary hearing.

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

for an abuse of discretion. United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir.

2006). In reviewing a district court’s denial of such a motion, we will reverse only

if the district court’s ultimate conclusion is arbitrary or unreasonable. United


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States v. Freixas, 332 F.3d 1314, 1318 (11th Cir. 2003). We must, however, be

able to determine the basis upon which the district court denied a motion to

withdraw a guilty plea in order to determine whether its exercise of discretion was

reasonable. United States v. Pressley, 602 F.2d 709, 711 (5th Cir. 1979).

Generally, we review for abuse of discretion a district court’s decision whether to

hold an evidentiary hearing. United States v. Arbolaez, 450 F.3d 1283, 1293 (11th

Cir. 2006); see also United States v. Stitzer, 785 F.2d 1506, 1514 (11th Cir. 1986)

(reviewing a district court’s decision not to grant an evidentiary hearing on a

defendant’s motion to withdraw his guilty plea for an abuse of discretion). We

review claims made for the first time on appeal, however, only for plain error.

United States v. Peters, 403 F.3d 1263, 1270 (11th Cir. 2005). For such claims, we

“may not correct an error the defendant failed to raise in the district court unless

there is: ‘(1) error, (2) that is plain, and (3) that affects substantial rights.’” Id. at

1271 (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 1785,

152 L.Ed.2d 860 (2002)). “Even then, we will exercise our discretion to rectify the

error only if it ‘seriously affects the fairness, integrity, or public reputation of

judicial proceedings.’” Id. (quoting Cotton, 535 U.S. at 631, 122 S.Ct. at 1785).

       A defendant has an absolute right to withdraw a guilty plea before the

district court accepts it. Fed.R.Crim.P. 11(d)(1). After the district court has

accepted a defendant’s guilty plea, and before sentencing, the defendant may


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withdraw a guilty plea if (1) the district court rejects the plea agreement, or (2) “the

defendant can show a fair and just reason for requesting the withdrawal.”

Fed.R.Crim.P. 11(d)(2)(A)-(B). This permissive withdrawal rule is to be liberally

construed, but, pursuant to it, there is no absolute right to withdraw a guilty plea.

United States v. Buckles, 843 F.2d 469, 471 (11th Cir. 1988).

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

just reason” to withdraw a 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. Id. at 471-72. If a defendant does

not satisfy the first two prongs of the Buckles analysis, this Court need not “give

particular attention” to the others. United States v. Gonzalez-Mercado, 808 F.2d

796, 801 (11th Cir. 1987).

      “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.”

Brehm, 442 F.3d at 1298 (internal quotation marks and alteration omitted). There

is a strong presumption that statements made by a defendant during the plea

colloquy are true. 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).

Where the colloquy at the plea hearing sufficiently probed the knowingness and

voluntariness of the guilty plea, a district court does not abuse its discretion by

declining to hold an evidentiary hearing on the motion to withdraw. See Stitzer,

785 F.2d at 1514.

       At the plea hearing, the district court satisfies its obligation to inquire into

the knowing and voluntary nature of a guilty plea by addressing three “core”

concerns: “(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.” United States v.

Hernandez-Fraire, 208 F.3d 945, 949 (11th Cir. 2000) (internal quotation marks

omitted). Under Federal Rule of Criminal Procedure 11, the district court must

“inform the defendant of his rights relevant to his guilty plea and determine that he

understands them.” Brehm, 442 F.3d at 1298. Rule 11 gives the district court

specific obligations that effectuate a knowing and voluntary plea, including the

obligation to inform the defendant of his right to plead not guilty, his right to

counsel, his right to jury trial, his rights at trial, his waiver of those rights as a

result of a plea, the nature of the charges, the minimum and maximum penalties he

faces as a result of a plea, and any limitation on appealing his conviction or




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sentence that might be contained in his plea agreement. Fed.R.Crim.P.

11(b)(1)(B)-(N).

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

discretion by denying Villalona’s request at sentencing to withdraw his guilty plea

because Villalona failed to establish a “fair and just reason” for the withdrawal of

his plea. Villalona had the close assistance of counsel prior to, and during, his plea

hearing, and the exhaustive hearing conducted by the magistrate judge established

that his guilty plea was knowing and voluntary. Although the record does indicate

that Villalona had formed the intention to withdraw his plea while he retained the

absolute right to do so, he failed to act promptly on that intention. Further, because

the magistrate judge conducted an exhaustive Rule 11 hearing that thoroughly

probed the knowing and voluntary nature of Villalona’s guilty plea, we conclude

that the district court did not plainly err, let alone abuse its discretion, by declining

to hold an evidentiary hearing on his request for withdrawal.

      Based on the aforementioned reasons, we affirm the district court’s order

denying Villalona’s request to withdraw his guilty plea.

      AFFIRMED.




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