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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-10511
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 3:15-cr-00045-RV-1



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

versus

ROBERT WIGGINS, JR.,

                                              Defendant - Appellant.

                       ________________________

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

                            (December 21, 2016)

Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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      Robert Wiggins appeals his conviction for being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1), and his resulting sentence. After

pleading guilty, Wiggins filed five motions to withdraw his plea, all of which the

district court denied. Wiggins appeals these denials. At sentencing, in part based

on his attempts to skirt his plea agreement, the district court denied Wiggins a

downward departure for acceptance of responsibility under U.S.S.G. § 3E1.1.

Wiggins also appeals this denial.

      Wiggins argues that the district court abused its discretion in denying his

motions to withdraw his guilty plea. Specifically, he argues that his attorney made

numerous errors surrounding his plea and that the district court erred in evaluating

the merits of his entrapment defense. But the record does not support either of

these arguments, so the district court did not abuse its discretion. Wiggins also

contends that he should have received a downward departure for acceptance of

responsibility because he plead guilty and never denied possessing firearms. But

in attempting to withdraw his plea, Wiggins made several arguments that could

reasonably be construed as trying to escape responsibility for his crime. The

district court did not, therefore, err in finding that Wiggins had not accepted

responsibility.

      After careful consideration, we find no reversible error and therefore affirm.




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                                    I.     FACTS

        Wiggins was charged with one count of possessing firearms by a convicted

felon under 18 U.S.C. § 922(g)(1). He agreed to plead guilty pursuant to a plea

agreement with the government. According to the plea agreement’s factual basis, a

confidential informant working with the Bureau of Alcohol, Tobacco, Firearms

and Explosives (“ATF”) made contact with Wiggins in a hotel room and purchased

three firearms from him, all while wearing a video recording device.

        At a change-of-plea hearing, the district court questioned Wiggins, who was

accompanied by his appointed counsel, Ron Johnson. Wiggins, under oath,

testified that he wished to plead guilty to possessing firearms and had discussed

fully with counsel the charge against him, the plea agreement, and the plea

agreement’s factual basis. Wiggins testified that he had read the factual basis and

that the facts it detailed were true. When the district court asked Wiggins if he was

satisfied with his counsel’s representation, he responded, “most definitely.” The

district court accordingly found that Wiggins made his decision to plead guilty

freely, knowingly, voluntarily, and with the advice of counsel, and it accepted his

plea.

        Shortly after this hearing, Wiggins filed, pro se, a motion to withdraw his

guilty plea. Wiggins argued that the factual basis for his plea was incorrect

because he never sold firearms and that he had evidence to show that an ATF agent



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was lying and had produced false evidence. Wiggins thereafter filed a second,

counseled, motion seeking to withdraw his plea. This motion reiterated that the

factual basis was false insofar as it stated that Wiggins sold firearms.

       The district court denied the first motion as improper because Wiggins was

represented by counsel 1 but held a hearing on the second motion before denying it.

At the hearing, Wiggins argued that the factual basis of his plea was inaccurate,

asserting that he was entrapped into selling firearms by the government. Wiggins

initially denied even possessing the firearms, but after the district court clarified

that the guns did not have to be in his actual possession and that construction or

joint possession would suffice, Wiggins acknowledged being “around [them].”

During the hearing, Wiggins’s counsel, Johnson, questioned his client as to

whether he truly would like to go to trial in light of the possible loss of the

acceptance of responsibility reduction and given the prosecution’s strong case.

       At the conclusion of the hearing, the district court denied Wiggins’s second

motion to withdraw his plea. The court determined that close assistance of counsel

was available to Wiggins, calling that determination “obvious.” The court found

that Wiggins’s guilty plea had been knowing and voluntary, explaining that the

court had “looked at the entire plea proceeding” and “s[aw] nothing at all in there

to indicate that there’s anything in error.” The court also found that judicial

       1
          Wiggins did not challenge the judge’s ruling that his uncounseled motion to withdraw
his guilty plea was improperly filed. He therefore has waived this argument.


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resources would be conserved by rejecting Wiggins’s request to withdraw his plea.

Finally, the court found that the government would not be prejudiced by the

withdrawal of Wiggins’s plea.

        After the hearing, Wiggins filed a third motion 2 to withdraw his guilty plea,

which repeated the argument that he had been entrapped into selling firearms by

the government. Wiggins also seemed to argue that the government would not

have evidence of his possession of firearms had it not entrapped him and that this

evidence therefore should be excluded. The district court denied his third motion.

       At Wiggins’s request, Johnson moved to withdraw as counsel. The district

court granted this motion and appointed replacement counsel. Replacement

counsel then filed his own motion to withdraw and requested a Faretta 3 hearing to

determine whether Johnson was capable of representing himself. The district court

held a Faretta hearing, where the court once again inquired if Wiggins denied

possessing firearms. This time, Wiggins asked if he could “plead the Fifth.” The

district court allowed replacement counsel to withdraw. 4




       2
         The district court referred to this motion, filed October 29, 2015, as the second motion
to withdraw Wiggins’s guilty plea when denying it.
       3
           Faretta v. California, 422 U.S. 806 (1975).
       4
           On Wiggins’s request, the district court re-appointed counsel for sentencing.


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       Wiggins filed two more motions, pro se, to withdraw his guilty plea. His

fourth motion5 argued more directly than his third that evidence of the firearms he

admitted possessing should be excluded at trial under Federal Rule of Evidence

403. It also argued that Wiggins’s previous counsel, Johnson, had been

ineffective, in part because he had convinced Wiggins that conviction at trial

would be automatic. Wiggins’s fifth motion substantially repeated his previous

allegations. The district court denied both motions.

       At sentencing, the district court found that Wiggins had not accepted

responsibility for his crime and therefore denied him a two-level downward

departure under U.S.S.G. § 3E1.1.6 This finding matched the recommendation

from the probation office, and was made over Wiggins’s objection. The court

stated that “under the guidelines and the statements that define [them], acceptance

of responsibility requires more than just a plea of guilty, and it’s not here in this

case.” This appeal followed, focusing on the district court’s denial of Wiggins’s

motions to withdraw his guilty plea and for a downward departure for acceptance

of responsibility.



       5
          Wiggins refers to this motion, filed December 16, 2015, as his third motion to withdraw
his guilty plea in the motion’s title.
       6
         Although Wiggins sought a three-level downward departure for acceptance of
responsibility, the government did not move for a one-level reduction under U.S.S.G. § 3E1.1(b).
This appeal, therefore, concerns the district court’s denial of the two-level downward departure it
was entitled to grant of its own accord under U.S.S.G. § 3E1.1(a).


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                                II.    DISCUSSION

A.    Withdrawal of Guilty Plea

      Wiggins challenges the district court’s denial of his motions to withdraw his

guilty plea, arguing that the district court erroneously rejected his “fair and just

reason[s] for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B); see United

States v. Izquierdo, 448 F.3d 1269, 1276 (11th Cir. 2006) (noting that the

defendant bears the burden to demonstrate fair and just reasons for withdrawal of

the plea). Wiggins argues that the district court erred in evaluating the merits of

his entrapment defense and that his attorney erred in neglecting to apprise him of

it. But entrapment was inapplicable to the crime with which Wiggins was charged.

Further, Wiggins argues that his attorney advised him to sign an inaccurate factual

statement, failed to prepare for trial, and coerced him into pleading guilty. The

district court found, however, that Wiggins’s guilty plea was made knowingly,

voluntarily, and with the close assistance of counsel. Neither the record nor

Wiggins’s arguments persuade us that these findings were in error.

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

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

2006). In determining whether a defendant has shown a fair and just reason to

withdraw his guilty plea, a district court “may consider the totality of the

circumstances surrounding the plea.” United States v. Buckles, 843 F.2d 469, 471–



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72 (11th Cir. 1988). “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

alterations omitted). Here, the district court was within its discretion to deny

Wiggins’s motions to withdraw his guilty plea.

      1.     Entrapment Defense

      Wiggins argues that his proffered entrapment defense was a fair and just

reason to withdraw his plea and that the district court abused its discretion by

considering the merits of that defense. He bases this argument entirely on our

decision in United States v. Schubert, 728 F.2d 1364 (11th Cir. 1984). Schubert is

distinguishable, however, because Wiggins would still be guilty of possessing

firearms even if he was entrapped into selling them. His argument that he was

entrapped into selling firearms was simply inapplicable to the crime with which he

was charged and to which he pled guilty, possessing firearms, so the district court

did not err in denying Wiggins’s motion to withdraw his plea.

      In Schubert, the defendant also tried to withdraw a guilty plea based on an

entrapment defense. See id. at 1365–65. He had pled guilty because a government

informant signed a sworn statement saying that the informant was not working for

the government, and he moved to withdraw that plea when the informant’s lie

came to light. See id. at 1364–65. But the district court denied Schubert’s request



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to withdraw his plea. See id. at 1365. It determined that Schubert had been

predisposed to commit the crime with which he was charged and that he did not,

therefore, have a meritorious entrapment defense. See id.

       This Court reversed that decision, calling it “improper for the district court

to decide the merits of the proffered defense” in the context of a plea withdrawal.

See id. at 1366. But the district court here did not weigh the merits of Wiggins’s

defense and decide, as in Schubert, that the facts he alleged failed to satisfy

entrapment’s requirements. Rather, when presented with Wiggins’s entrapment

argument, the district court stated that it “might be a good argument” were

Wiggins “charged with selling the firearm,” but as he was not, the court did not

“see how [Wiggins] can be entrapped to possess these firearms under these

circumstances.” Where the district court in Schubert decided that the entrapment

claim raised there was not likely to succeed, the court here decided that entrapment

was not applicable at all. Even if all the facts Wiggins alleged were taken as

true—i.e., a government informant cajoled him into selling firearms—entrapment

would still not present any defense to possession of firearms, the crime to which

Wiggins plead guilty. 7




       7
         Entrapment can provide a defense to possession of a firearm by a convicted felon, see
United States v. Sistrunk, 622 F.3d 1328, 1332 (11th Cir. 2010), but Wiggins did not and does
not allege that he was entrapped into possessing firearms, only selling them.


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       Other circuits have recognized this distinction. One wrote that “[i]f the

movant’s factual contentions, when accepted as true, make out no legally

cognizable defense to the charges, he has not effectively denied his culpability,

and his withdrawal motion need not be granted.” United States v. Barker, 514 F.2d

208, 220 (D.C. Cir. 1975) (emphasis added). 8 Another wrote that a defense raised

in withdrawing a plea was “irrelevant to this appeal because it [was] insufficient on

its face.” United States v. Allard, 926 F.2d 1237, 1242 (1st Cir. 1991). We find

this reasoning persuasive. The district court did not, therefore, abuse its discretion

in deciding that Wiggins’s entrapment defense was not a fair and just reason to

allow him to withdraw his guilty plea.

       2.      Totality of the Circumstances Surrounding Plea

       Nor did the totality of the circumstances surrounding Wiggins’s guilty plea

support his attempts to withdraw it. In making this totality of the circumstances

determination, relevant factors include “(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.” Buckles, 843 F.2d



       8
         In Schubert, this court distinguished Barker. See Schubert, 728 F.2d at 1366–67.
There, we noted, inter alia, that “unlike the ‘national security’ defense in Barker, if Schubert’s
factual contentions were accepted as true, he makes out a legally cognizable defense to the
charges.” See id. But here, Wiggins’s entrapment defense is inapplicable to his charges, so this
case is more akin to Barker than Schubert.


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469 (citations omitted). Wiggins challenges the district court’s findings as they

relate to the first two elements, which we address in turn. We have, in the past,

focused on the first two Buckles factors and minimized the others if these first two

have been satisfied.9 As these first two factors were satisfied here, we will give no

further consideration to the third and fourth factors.

       a.      Assistance of Counsel

       Wiggins enjoyed the close assistance of counsel. In assessing whether close

assistance of counsel was available through plea proceedings, we examine whether

counsel was available and utilized, as well as whether counsel performed

adequately. See United States v. McCarthy, 99 F.3d 383, 385 (11th Cir. 1996)

(finding no abuse of discretion where “[t]he district court, after hearing testimony

on these issues, found and concluded that Defendant had been ably and

professionally represented [and] that close assistance of counsel was available and

utilized extensively”); United States v. Freixas, 332 F.3d 1314, 1318–19 (11th Cir.

2003) (deferring to the district court’s finding “that retained counsel’s performance

was in no sense deficient”). The district court found that Johnson was available

and that Wiggins utilized his assistance, and Wiggins does not dispute these



       9
          See United States v. Gonzalez-Mercado, 808 F.2d 796, 801 (11th Cir. 1987) (declining
to give “the third factor under the [Buckles] analysis . . . considerable weight” or the fourth factor
“particular attention” because the first two factors were satisfied); see also United States v.
McCarty, 99 F.3d 383, 385 n.2 (11th Cir. 1996) (stating that the district court is not required to
find that the fourth Buckles factor applies).


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findings. Indeed, Johnson was “standing beside” Wiggins at his change-of-plea

hearing, where Wiggins testified that he had fully discussed the charge against him

with Johnson, that he had gone over his plea agreement and its factual basis with

Johnson, and that he and Johnson had enough time to discuss the case fully.

      Instead, Wiggins asserts that Johnson rendered inadequate assistance and

therefore was not closely available. His own words contradict this argument. At

his change-of-plea hearing, Wiggins stated that he was “most definitely” satisfied

with Johnson’s representation. Nonetheless, Wiggins now argues that Johnson (1)

failed to inform him of his possible entrapment defense; (2) improperly advised

him to sign the factual basis of his guilty plea despite its inclusion of inaccurate

allegations that Wiggins sold firearms; and (3) failed to prepare for trial. We

disagree on all counts.

      Wiggins first argues that close assistance of counsel was unavailable

because Johnson failed to advise him of his entrapment defense before he pled

guilty. Wiggins cites our admonition that a “guilty plea does not relieve counsel of

the responsibility to investigate potential defenses so that a defendant can make an

informed decision.” See McCoy v. Wainright, 804 F.2d 1196, 1198 (11th Cir.

1986) (citing Scott v. Wainright, 698 F.2d 427, 429 (11th Cir. 1983)). But in Scott,

we clarified that “[c]ounsel’s advice . . . need not involve every conceivable

defense, no matter how peripheral to the normal focus of counsel’s inquiry.” 698



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F.2d at 429. Here, Wiggins was charged with possessing firearms, not selling

them. There was no dispute that Wiggins at least constructively possessed firearms

prior to any contact with law enforcement. Thus, Wiggins could not have been

entrapped into possessing these firearms. Johnson was not deficient in failing to

advise Wiggins of an entrapment defense he could not use.

      Second, Wiggins argues that Johnson erroneously counseled him to sign the

plea agreement, which included in its factual basis a firearms sales transaction that

never occurred. But, once again, Wiggins did not plead guilty to selling firearms,

so the facts stating that he had sold them in the factual basis of his guilty plea were

immaterial. Johnson could have contested these facts, but, as the Supreme Court

recently recognized: “[D]uring plea hearings, the defendant may not wish to irk

the prosecutor or court by squabbling about superfluous factual allegations.”

Descamps v. United States, 133 S. Ct. 2276, 2289 (2013). In any event, because

the fact, however erroneous, that Wiggins sold the firearms he indisputably

possessed did not affect Wiggins’s sentence, Johnson’s decision not to challenge

that fact did not mean that Wiggins lacked the close assistance of counsel under the

first Buckles factor.

      Third, Wiggins contends that Johnson did not prepare for trial and instead

pushed Wiggins relentlessly to plead. But the record contains nothing supporting

this allegation. At the hearing on Wiggins’s second motion to withdraw his guilty



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plea, Johnson questioned his client in open court as to whether he would like to go

to trial in light of the possible loss of the acceptance of responsibility reduction and

given the prosecution’s strong case. Certainly, Johnson was advising Wiggins not

to go to trial, but at no time did Johnson state that he was unwilling or unable to try

the case.

       Wiggins has not demonstrated that Johnson failed to discharge ably his

duties as counsel. Thus, he has not met his burden to show that the district court

abused its discretion in finding that close assistance of counsel was available to

him.

             b.     Knowing and Voluntary Plea

       Wiggins’s plea was also knowing and voluntary. He argues that Johnson

coerced him into pleading guilty by telling him that “conviction at trial would be

automatic.” Appellant’s Br. at 15. But the district court found that Wiggins made

a knowing and voluntary guilty plea, and nothing in the record contradicts this

finding. It is axiomatic that “[a]ll pleas of guilty are the result of some pressures or

influences on the mind of the defendant.” Buckles, 843 F.2d at 469. “A defendant

cannot complain of coercion where his attorney, employing his best professional

judgment, recommends that the defendant plead guilty.” Id. at 472 (internal

quotation marks omitted). As noted above, the record demonstrates only that

Johnson asked Wiggins to consider whether proceeding to trial over pleading



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guilty would be a worthwhile endeavor considering the likelihood of conviction

and the potential impact of a trial on Wiggins’s sentence. We see nothing

unreasonable about Johnson’s advice to Wiggins regarding the decision to plead

guilty. The district court did not abuse its discretion in finding that Wiggins’s

guilty plea was knowing and voluntary.

B.    Acceptance of Responsibility

      Wiggins also challenges the district court’s denial of a downward departure

for acceptance of responsibility under U.S.S.G. § 3E1.1. He argues that his guilty

plea and candor with the probation officer qualified him for the departure. Further,

he contends that his attempt to withdraw his guilty plea was an assertion of his

constitutional rights that should not disqualify him from receiving an acceptance of

responsibility departure. We cannot agree. The evidentiary and entrapment

arguments underlying Wiggins’s attempts to withdraw his plea, along with his

statements to the district court, provided some evidence that he had not accepted

responsibility. Therefore, the district court did not clearly err in denying Wiggins a

downward departure for acceptance of responsibility.

      We review the district court’s denial of an acceptance of responsibility

downward departure for clear error. United States v. Moriarty, 429 F.3d 1012,

1022 (11th Cir. 2005). “[T]he determination of the sentencing judge is entitled to

great deference on review.” Id. (quoting U.S.S.G. § 3E1.1 cmt. n.5) (internal



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quotation marks omitted). We will not set aside this determination unless the

record clearly establishes that the defendant has accepted responsibility. See id. at

1022–23.

      “The defendant bears the burden of clearly demonstrating acceptance of

responsibility.” Id. at 1023 (internal quotation marks omitted). A defendant’s

guilty plea “will constitute significant evidence of acceptance of responsibility” as

long as he also “admit[ted] the conduct comprising the offense of conviction” and

“any additional relevant conduct for which he [was] accountable.” U.S.S.G. §

3E1.1 cmt. n.3. But “this evidence may be outweighed by conduct of the

defendant that is inconsistent with such acceptance of responsibility.” Id. “A

defendant who enter[ed] a guilty plea is not entitled to an adjustment . . . as a

matter of right.” Id.

      It is certainly true that moving to withdraw a guilty plea does “not

automatically preclude” a defendant from receiving a downward departure for

acceptance of responsibility. See United States v. McCarty, 99 F.3d 383, 387 (11th

Cir. 1996). Here, however, the district court’s determination that Wiggins did not

accept responsibility for his crime in light of his motions to withdraw was well

supported by the record. In his several motions, Wiggins “challeng[ed] the

admissibility of the essential evidence against him,” arguing that evidence of his

possession of firearms would be excludable at trial. United States v. Gonzalez, 70



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F.3d 1236, 1239 (11th Cir. 1995). In so doing, Wiggins “attempted to avoid a

determination of factual guilt and to thereby escape responsibility” for the charges,

a reason we have approved to support the denial of an acceptance of responsibility

reduction. Id. at 1239.

       Moreover, Wiggins expressly denied possessing firearms, once telling the

district court that they “weren’t in [his] possession at all.”10 And, at the Faretta

hearing, Wiggins asked if he could “plead the Fifth” instead of telling the district

court whether he possessed firearms. A defendant “may remain silent in respect to

relevant conduct beyond the offense of conviction without affecting his ability to

obtain a reduction” for acceptance of responsibility, but this right does not extend

to silence about the offense of conviction itself. U.S.S.G. § 3E1.1 cmt. n.1(a)

(emphasis added). Wiggins’s statements demonstrated that he did not accept

responsibility for his crime.

       Wiggins argues that he nonetheless clearly accepted responsibility by

entering into a timely plea agreement with the government, signing a factual

statement admitting his criminal conduct, and telling the probation officer that he

possessed firearms. In light of the conduct detailed above, which was

“inconsistent with such acceptance of responsibility,” the district court did not

clearly err in its decision to deny the reduction. U.S.S.G. § 3E1.1 cmt. n.3.

       10
          Wiggins did thereafter admit to being “around [them],” when the court clarified that
the possession could be constructive or joint.


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      Wiggins also asserts that filing a motion to withdraw a plea involves the

exercise of a constitutional right for which he should not have been penalized.

Even if Wiggins’s attempts to withdraw his guilty plea implicated a constitutional

right—for example, the right to a jury trial—the purpose of the acceptance of

responsibility downward departure is such that it may be denied to defendants

“who put[] the government to its burden of proof at trial.” Id. § 3E1.1 cmt. n.2. If

denying the acceptance of responsibility downward departure to a defendant

because he proceeded to trial is acceptable, then so is denying the departure to a

defendant who sought to withdraw his plea in order to go to trial. The district court

found that Wiggins had not accepted responsibility, and Wiggins has not shown

this finding to be clearly erroneous.

                               III.     CONCLUSION

      For all of the foregoing reasons, we affirm Wiggins’s conviction and

sentence.

      AFFIRMED.




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