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                                                         [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-12455
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 0:15-cr-60225-KAM-1



UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                  versus


NEIL TIMOTHY AHO,

                                                          Defendant-Appellant.
                       ________________________

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

                              (June 27, 2019)

Before ED CARNES, Chief Judge, MARTIN and NEWSOM, Circuit Judges.

PER CURIAM:
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      Neil Timothy Aho appeals his conviction and sentence for distribution of

child pornography, in violation of 18 U.S.C. § 2252(a)(2). He contends that the

district court erred in denying his motion to withdraw his guilty plea and in

applying a two-level sentencing enhancement for obstruction of justice.

                                          I.

      In September 2015 a grand jury indicted Aho for knowingly distributing,

receiving, and possessing child pornography after four government investigations

uncovered significant electronic evidence that Aho distributed pornography

through a file sharing program. Aho retained Michael Salnick to represent him. In

February 2016 Aho agreed to plead guilty to distributing child pornography in

exchange for the dismissal of the other charges. The plea agreement stipulated that

Aho was aware that his sentence would be “imposed by the court after

consideration of the Federal Sentencing Guidelines” and that “any estimate of the

probable sentencing range” was a prediction, not a promise.

      At his plea hearing Aho affirmed that he had read and discussed the plea

agreement with Salnick before signing it; that he had not been threatened or

coerced to accept the agreement; that he understood that the statutory minimum

was five years imprisonment and the statutory maximum was twenty years; that the

court could impose any sentence up to the maximum, and that Aho could not

withdraw his plea based solely on the sentence imposed. When asked by the


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magistrate judge if he discussed the advisory Sentencing Guidelines with his

attorney, Aho answered, “Cursorily, yes.” The magistrate judge followed up by

asking him, “You have?” and Aho answered, “Yes.”

      In the following two months Aho wrote three pro se letters to the district

court alleging that he was coerced to plead guilty and asking to withdraw his plea.

The court later granted Aho’s motion to dismiss Salnick as counsel and appointed a

federal public defender. In April 2016 Aho moved to withdraw his plea. At the

hearing on the motion to withdraw Salnick testified: that he reviewed with Aho the

discovery that the government had provided; that he explained to Aho that the

guidelines were advisory and would govern his sentence; that guidelines scores

were high in child pornography cases and that Aho would likely receive a high

score resulting in a sentence well over the five-year minimum; that Aho would

receive a number of enhancements under the guidelines; that Salnick met with Aho

about two weeks before his plea hearing to answer a question Aho had sent via

email about an amendment to the guidelines that added a mens rea requirement;

and that Salnick discussed the possibility of hiring a digital forensic expert with

Aho but concluded that it would be expensive and would likely only strengthen the

government’s case.

      At the hearing Aho testified that he and Salnick discussed only minimum

and maximum sentences and there was “nothing said about guideline impact”; that


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Salnick did not once use the word “guidelines” with him and he only learned of the

guidelines after his plea; and that he learned after his plea that there were

amendments to the guidelines dealing with child pornography distribution. During

cross-examination Aho claimed he did not remember what he meant when he sent

an email before pleading guilty asking whether “a change to sentencing going into

effect Aug 1” impacted his case. The government proffered two exhibits showing

that Salnick recorded that he had spent three-and-a-half hours discussing discovery

and the guidelines with Aho on December 19, 2015.

      The district court denied Aho’s motion to withdraw. In its findings of fact

and conclusions of law the court credited Salnick’s testimony, writing that Aho’s

testimony was “completely lacking in credibility.” An amended presentencing

investigation report recommended a two-level enhancement for obstruction of

justice because of statements Aho made during the hearing on his motion to

withdraw. Because of this additional enhancement and because Aho no longer

received a reduction for accepting responsibility, the PSR calculated a total offense

level of 39 and a criminal history category of I. This resulted in a guideline

sentence of the statutory maximum of 240 months. See United States Sentencing

Guidelines § 5G1.1(a) (Nov. 2016).

      At sentencing the district court found Aho was not entitled to a reduction for

acceptance of responsibility and overruled his objections to the obstruction


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enhancement because the court found that he made false statements: (1) that he did

not consult with Salnick regarding the guidelines, and (2) that Salnick never

reviewed the discovery with him in detail. The court said that although Aho had

“foolishly” lied to try to withdraw his plea and his guideline range increased from

151–188 months to 240 months, it would vary his sentence downward to 204

months because Aho had not produced the child pornography.

                                          II.

      Aho first contends that the district court erred in denying his motion to

withdraw his guilty plea. We review the denial of a motion to withdraw a guilty

plea only for abuse of discretion and reverse the district court’s decision only if it

is “arbitrary or unreasonable.” United States v. Brehm, 442 F.3d 1291, 1298 (11th

Cir. 2006) (quotation marks omitted).

      A defendant may withdraw a guilty plea 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)(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




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would be prejudiced if the defendant were allowed to withdraw his plea.” United

States v. Freixas, 332 F.3d 1314, 1318 (11th Cir. 2003) (quotation marks omitted).

      “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 (quotation marks and brackets omitted). When the

testimony of two witnesses directly conflict, we credit the district court’s choice of

which one to believe unless that choice is based on evidence that “is so

inconsistent or improbable on its face that no reasonable factfinder could accept

it.” United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (quotation

marks omitted).

      Here the district court did not abuse its discretion in denying Aho’s motion

to withdraw his guilty plea. In concluding that Aho had close assistance of

counsel, the district court credited Salnick’s testimony that he had discussed the

guidelines with Aho on multiple occasions. Aho testified that Salnick did not

adequately explain how the guidelines would apply to his case, putting particular

emphasis on his statement at his plea hearing before the magistrate judge that

Salnick had discussed the guidelines only “cursorily” with him. But we must defer

to the district court’s decision to credit Salnick’s testimony over Aho’s because

based on a reading of Salnick’s detailed testimony and records that choice was not

“so improbable on its face that no reasonable factfinder could accept it.” Id. Aho


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also argues that he did not receive close assistance of counsel because Salnick did

not hire a forensic computer expert or inform Aho of a change to the guidelines

that added a mens rea element to his distribution enhancement. But the district

court reasonably credited Salnick’s testimony that hiring an expert would have

been expensive and would have only made the government’s case stronger. And

Aho cites no authority to support the proposition that Salnick was obligated to

inform him of prospective guidelines amendments that were not in effect at the

time of his guilty plea. In any event, Aho received the benefit of the mens rea

amendment because his sentencing was delayed for two years.

      Aho’s plea was also knowing and voluntary because the magistrate judge

conducted an extensive Rule 11 inquiry before accepting it. Aho argues that his

plea was not knowing and voluntary because Salnick told him that he would

receive a significantly lower sentence. But the reason that Aho’s offense level was

significantly higher than Salnick initially expected was Aho’s decision to try to

withdraw his plea, which caused him to lose a three-level reduction for acceptance

of responsibility and gain a two-level enhancement for obstruction of justice. And

Aho’s plea agreement, which the magistrate judge verified that Aho understood,

unambiguously provided that the ultimate sentence imposed might differ from any

estimates provided by Aho’s counsel.




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      The district court also properly determined that proceeding to trial would not

conserve judicial resources and would prejudice the government. So we cannot

say that the district court’s decision to deny Aho’s motion was arbitrary or

unreasonable. See Brehm, 442 F.3d at 1298.

                                          III.

      Aho also contends that the district court erred in applying a two-level

enhancement for obstruction of justice. “In reviewing the district court’s

imposition of an obstruction-of-justice sentencing enhancement, we review the

district court’s factual findings for clear error and we review its application of the

factual findings to the sentencing guidelines de novo.” United States v. Doe, 661

F.3d 550, 565 (11th Cir. 2011).

      A two-level obstruction-of-justice enhancement is warranted if “the

defendant willfully obstructed or impeded, or attempted to obstruct or impede, the

administration of justice with respect to the investigation, prosecution, or

sentencing of the instant offense of conviction” and the obstruction related to the

offense of conviction, any relevant conduct, or a closely related offense. United

States Sentencing Guidelines § 3C1.1 (June 2018). Covered conduct includes

“committing, suborning, or attempting to suborn perjury.” U.S.S.G. § 3C1.1, cmt.

n.4(b). A defendant commits perjury when he gives “false testimony concerning a

material matter with the willful intent to provide false testimony, rather than as a


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result of confusion, mistake, or faulty memory.” United States v. Dunnigan, 507

U.S. 87, 94 (1993).

      The district court did not clearly err in determining that Aho’s testimony was

materially false and intended to affect the court’s decision about whether to grant

Aho’s motion to withdraw his plea. While the record does not conclusively show

whether Aho’s statements contradicting Salnick’s testimony were the result of a

willful intent to provide false testimony or of confusion, mistake, or faulty

memory, we cannot find the factfinder’s choice between two permissible views of

the evidence clearly erroneous. See United States v. Saingerard, 621 F.3d 1341,

1343 (11th Cir. 2010).

      Deferring to the district court’s decision to credit Salnick’s testimony over

Aho’s, there is sufficient evidence in the record to support the view that Aho

willfully misrepresented Salnick’s conduct in an attempt to convince the court to

grant his motion. For example, while Aho said that he had not reviewed the

guidelines with Salnick in detail, Salnick testified that they had reviewed them “a

number of times,” that he had explained the four enhancements Aho might receive,

and that he advised Aho that he was going to “score high.” And while Aho said

that Salnick flipped through 400 or 500 pages of discovery with him for about 15

minutes on one occasion, Salnick testified that he “went over all the discovery”

with Aho and Salnick’s case files reflected that he discussed discovery with Aho


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for three and a half hours on December 19, 2015. So the district court did not

clearly err in reaching the factual findings it relied on to impose the enhancement.

      AFFIRMED.




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