                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                           AUGUST 18, 2008
                               No. 08-10977               THOMAS K. KAHN
                           Non-Argument Calendar              CLERK
                         ________________________

                  D. C. Docket No. 06-00168-CR-WSD-1

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

DERRICK A. BROWN,
a.k.a. Derrick Brown,

                                                         Defendant-Appellant.


                         ________________________

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

                              (August 8, 2008

Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:
      On April 11, 2006, a Northern District of Georgia court returned a thirteen-

count indictment against Derrick A. Brown charging him with seven counts of

bank robbery, in violation of 18 U.S.C. § 2113(a), and six counts of possession of a

firearm in furtherance of a crime of violence, bank robbery, in violation of 18

U.S.C. § 924(c)(1)(A)(ii). On March 20, 2007, Brown pled guilty to two of the §

firearm charges, Counts Four and Six, and on February 25, 2008, the district court

sentenced him to prison for a total of 384 months – 84 months on Count Four and

300 months on Count Six. Brown now appeals, contending that the district court

abused its discretion by denying his motion to withdraw his guilty plea without

first holding an evidentiary hearing. A plea hearing, he represents, would establish

that at the time the court entertained and accepted his pleas of guilty, he did not

understand that the meaning of the term “firearm,”as used in § 924(c)(1)(A). This

is because the court failed to inform him of the statutory definition of firearm in the

words it would use in instructing a jury as to the meaning of the term.

      We review the district court’s refusal to conduct an evidentiary hearing for

an abuse of discretion. See United States v. Stitzer, 785 F.2d 1506, 1514 (11th Cir.

1986) (holding that the district court's refusal to hold an evidentiary hearing did not

amount to abuse of discretion because of the extensive Fed. R. Crim. P. 11

inquiries conducted by the trial court prior to accepting the appellant's guilty plea).



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A district court must hold an evidentiary hearing where it cannot state conclusively

that the facts alleged, taken as true, would present no ground for relief. United

States v. Yizar, 956 F.2d 230, 234 (11th Cir.1992) (addressing a claim of

ineffective assistance of counsel in 28 U.S.C. § 2255 context). A hearing is not

necessary, however, if the defendant, in moving to withdraw his guilty plea, only

seeks to “relitigate representations made by himself, his lawyer, and the prosecutor

in open court.” United States v. Dabdoub-Diaz, 599 F.2d 96, 100 (5th Cir. 1979).

      Rule 11(d) states that a defendant may withdraw a plea of guilty after the

court accepts the plea, but before it imposes a sentence, if the defendant can show a

fair and just reason for requesting the withdrawal. Fed.R.Crim.P. 11(d). Whether

a defendant’s motion to withdraw shows a fair and just reason is to be liberally

construed; the decision to allow withdrawal is left to the sound discretion of the

district court, however, and will not be disturbed unless it is arbitrary or

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

determining if the defendant has met his burden for withdrawal, “the 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 government would be prejudiced if the



                                           3
defendant were allowed to withdraw his plea.” Id. at 471-472 (citations omitted).

      There is no mechanical rule for us to follow when determining whether a

district court complied with Rule 11's requirement to satisfy itself that a defendant

understood the nature of the charges against him. United States v. Camacho, 233

F.3d 1308, 1314 (11th Cir. 2000). The extent of the inquiry required depends on

the defendant’s intelligence and the relative complexity of the charges involved.

Id. “For simple charges . . . ‘a reading of the indictment, followed by an

opportunity given the defendant to ask questions about it, will usually suffice.’”

Id. (quoting United States v. DePace, 120 F.3d 233, 237 (11th Cir. 1997)).

      Here, Brown failed to provide credible evidence that he did not understand

the nature of the charges to which he pled guilty. The district court therefore did

not abuse its discretion by refusing to conduct an evidentiary hearing on Brown’s

motion to withdraw his plea.

      AFFIRMED.




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