                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             July 17, 2009
                              No. 08-15659                 THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                    D. C. Docket No. 07-00247-CR-W-N

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

CHAD BRANDON SMITH,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Alabama
                       _________________________

                               (July 17, 2009)

Before BIRCH, BLACK and FAY, Circuit Judges.

PER CURIAM:

     Chad Brandon Smith appeals his conviction and sentence for committing a
sexual act with a minor, in violation of 18 U.S.C. §§ 2243(a) and 2246(2). Smith

contends that the district court erroneously denied his motion to withdraw his

guilty plea. He also argues that the court erroneously enhanced his sentence based

on a prior state misdemeanor conviction for sexual misconduct. Finding no error,

we AFFIRM.

                                I. BACKGROUND

      In October 2007, Smith was indicted for violating 18 U.S.C. §§ 2243(a) and

2246(2) as follows: “On or about June 17, 2006, at Gunter Air Force Base, . . .

[Smith] did knowingly engage in a sexual act with a minor, who had attained the

age of 12 years but who had not attained the age of 16 years, and who was at least

four years younger than [Smith], and attempted to engage in a sexual act with the

minor.” Doc. 1. In January 2008, Smith pled guilty before a magistrate judge.

Doc. 22 at 2. At that hearing, Smith averred that he had received a copy of the

indictment and discussed the case fully with his counsel. Id. at 3-4. Smith also

testified that his counsel had answered any questions Smith had about the case and

that Smith was fully satisfied with his counsel’s representation and advice. Id. at 4.

Furthermore, Smith affirmed that he was pleading guilty of his own free will

because he was in fact guilty. Id. at 5.

      The district court then asked the government to state the elements of the



                                           2
charge. Id. at 8. Among the elements listed by the prosecutor were that the

defendant engaged in a sexual act with a minor as charged in the indictment and

that the defendant did so knowingly. Id. at 9. Smith’s attorney proceeded to lay a

factual basis for the charge as follows:

      MR. PETERSEN: Mr. Smith, on or about the seventeenth of June did
      you knowingly have sex with a minor, to wit someone who was under
      the age of sixteen but older than the age of twelve?

      (Whereupon, Mr. Petersen conferred with the defendant off the record
      and out of the hearing of the other courtroom participants.)

      MR. PETERSEN: Your Honor, may I have a moment with my client?

      THE COURT: You may.

      MR. PETERSEN: Your Honor, we’re ready to proceed.

      THE COURT: We were talking about the elements.

      MR. PETERSEN: Yes, Your Honor. Mr. Smith, the minor female
      that we were discussing just a moment ago, did you subsequently
      learn that she was between the age of twelve and sixteen years old?

      A. Yes, sir.

      MR. PETERSEN: Were you at least four years older than that
      individual?

      A. Yes, sir.

      MR. PETERSEN: At the time you either had engaged in a sexual act
      with her or attempted to engage in a sexual act with her?

      A. Yes, sir.

                                           3
       MR. PETERSEN: Your Honor, I believe that meets the elements of
       the offense.

Id. at 9-10.

       Seeking to clarify Smith’s knowledge of the minor’s age, the prosecutor

asked Smith whether the minor had told him when they met that she was about to

turn sixteen. Id. at 10. Smith responded, “No, ma’am.” Id. at 11. Smith also

denied having a conversation with the minor’s mother. Id. The government

proffered that the evidence would show that the minor told Smith she was about to

be sixteen, and that the minor’s mother warned Smith not to call the minor because

she was not of age. Id. at 12. The magistrate judge indicated that he would not

accept the guilty plea if Smith was claiming that he did not know the minor was

under sixteen at the time they had sexual relations. Id. A recess was taken to allow

Smith’s attorney to discuss this issue with Smith and another attorney representing

Smith in the case. Id. at 12-13.

       The following colloquy occurred after the plea hearing resumed:

       MR. PETERSEN: Your Honor, if I may proceed with the questioning
       of my client?

       THE COURT: Please.

       MR. PETERSEN: Mr. Smith, were you aware that the minor female –
       or the female that you engaged in a sexual act with was sixteen years
       – had not yet turned sixteen?



                                         4
      A. Yes, sir.

      MR. PETERSEN: Were you, at least at that time, four years older than
      she?

      A. Yes, sir.

      MR. PETERSEN: At the time of the sexual act, how old were you? If
      you remember.

      A. Twenty-five or twenty-six.

      MR. PETERSEN: Your Honor, I believe that establishes the
      knowingly component of the elements of the offense.

      MS. HARDWICK: Your Honor, the Government is satisfied that it
      does satisfy the knowing component. The Government would ask the
      Court to reaffirm that he’s entering this plea voluntarily and on his
      own.

Id. at 13. Upon further questioning, Smith reiterated that he understood his right to

a trial and that he was entering his plea voluntarily and knowingly. Id. at 14. The

magistrate judge found that Smith was aware of the nature of the charges and

consequences of the guilty plea. The judge further found that the guilty plea was

supported by an independent factual basis for each of the offense’s essential

elements. Accordingly, the magistrate judge accepted Smith’s guilty plea. Id.

      In April 2008, Smith, through new counsel, moved to withdraw his guilty

plea. Doc. 24. Smith argued that his admission at the plea hearing about his

knowledge of the female’s age “was, at best, ambiguous as to when he found out



                                          5
that she was less than sixteen years of age.” Id. at 2. The district court denied the

motion, finding Smith’s assertion not credible. Doc. 30 at 3-5. Additionally, the

court found that Smith was represented by three attorneys from the Federal

Defender’s Office and enjoyed the close assistance of counsel. Id. at 5-6. The

court found that Smith’s guilty plea was knowing and voluntary, a factor not

challenged by Smith. Id. at 6. Furthermore, the expenditure of judicial resources

in preparation for Smith’s sentencing hearing weighed against a withdrawal,

especially given that Smith waited three months to withdraw his plea and filed his

motion eleven days before his scheduled sentencing hearing date. Id. at 6-7.

Finally, the court found that the government would suffer prejudice because it had

released witnesses, including some in the military, who might not be available for

trial anymore. Id. at 7.

      At a sentencing hearing in September 2008, the district court first

determined that Smith qualified for a guideline enhancement under United States

Sentencing Guideline § 4B1.5 (“U.S.S.G. § 4B1.5") for repeat and dangerous sex

offenders against minors. Doc. 65 at 6. The enhancement was based upon Smith’s

prior state conviction for sexual misconduct in violation of Alabama Code § 13A-

6-65. Id. at 4. Smith’s criminal history category of V and his enhanced offense

level of 34 yielded a guideline sentencing range of 235 to 293 months of



                                           6
imprisonment. Id. at 8. The court then allowed Smith and his attorney to present

any mitigating factors. Smith’s attorney suggested that Smith was not a sexual

predator of young children because the females involved in his prior state case and

the instant case were both fifteen-year-olds. Id. at 8-9. Smith then spoke on his

own behalf. For the first time, Smith alleged that the reason he wanted to

withdraw his guilty plea was “because my first attorney told me – when I stated to

him that this girl told me she was older than what she was, he told me that that was

not a defense and it did not matter.” Id. at 9. Smith said he did not know at the

time he pled guilty that a lack of knowledge of the minor’s age was a defense

under federal law. Id. Smith did not call his prior attorneys or any other witnesses

to testify regarding this allegation. After considering the 18 U.S.C. § 3553(a)

factors, the court varied downward from the guidelines and sentenced Smith to 108

months of imprisonment and five years of supervised release. Id. at 16-18.

      Smith raises two arguments on appeal. First, Smith contends that the district

court erred by not allowing him to withdraw his guilty plea based on his assertion

at the sentencing hearing that his attorney had misled him regarding a possible

defense. According to Smith, the court should have considered this allegation in

determining whether he had enjoyed the close assistance of counsel. Second,

Smith maintains that the district court erred in sentencing Smith as a repeat and



                                          7
dangerous sex offender under U.S.S.G. § 4B1.5.

                                II. DISCUSSION

A. Denial of Smith’s Motion to Withdraw His Guilty Plea

      We will affirm a district court’s denial of a motion to withdraw a guilty plea

absent an abuse of discretion. See United States v. Medlock, 12 F.3d 185, 187

(11th Cir. 1994). The court’s decision must be arbitrary or unreasonable to

constitute an abuse of discretion. See United States v. Brehm, 442 F.3d 1291,

1298 (11th Cir. 2006) (per curiam). A defendant has no absolute right to withdraw

a guilty plea before sentencing. See Medlock, 12 F.3d at 187. Withdrawal may be

permitted after a guilty plea has been accepted but prior to sentencing if the

defendant establishes a “‘fair and just reason’” warranting withdrawal. Brehm,

442 F.3d at 1298 (quoting Federal Rule of Criminal Procedure 11(d)(2)(B)).

Whether a fair and just reason exists requires consideration of all 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.’” Id. (quoting United States v.

Buckles, 843 F.2d 469, 472 (11th Cir. 1988)). If an appellant does not satisfy the

first two prongs of the Buckles analysis, we need not “give particular attention” or



                                           8
weight to the last two. United States v. Gonzalez-Mercado, 808 F.2d 796, 801

(11th Cir. 1987).

      A plea may be involuntary when the defendant “has such an incomplete

understanding of the charge that his plea cannot stand as an intelligent admission

of guilt.” Marshall v. Lonberger, 459 U.S. 422, 431, 103 S. Ct. 843, 849 (1983)

(quotation marks and citation omitted). A guilty plea is also not knowing and

voluntary if the defendant was denied the effective assistance of counsel under the

standards of Strickland v. Washington, 466 US. 688, 104 S. Ct. 2052 (1984). See

McCoy v. Wainwright, 804 F.2d 1196, 1198 (11th Cir. 1986) (per curiam). In the

context of a guilty plea, the defendant must establish that his counsel’s

performance was deficient, and that a reasonable probability exists that he would

not have pleaded guilty but for his counsel’s errors. See id. “[W]here the alleged

error of counsel is a failure to advise the defendant of a potential affirmative

defense to the crime charged, the resolution of the ‘prejudice’ inquiry will depend

largely on whether the affirmative defense likely would have succeeded at trial.”

Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 371 (1985).

      It is within the trial court’s purview to ascertain the “good faith, credibility,

and weight of a defendant’s assertions in support of a” withdrawal request. Brehm,

442 F.3d at 1298 (quotation marks and citation omitted). A defendant’s statements



                                           9
made under oath at his plea colloquy are presumptively true. See Medlock, 12

F.3d at 187. Consequently, a defendant “bears a heavy burden to show his

statements were false.” United States v. Rogers, 848 F.2d 166, 168 (11th Cir.

1988) (per curiam).

       Considering the totality of the circumstances, the district court’s denial of

the motion for withdrawal was neither arbitrary nor unreasonable. Under the first

Buckles prong, the record supports the district court’s finding that Smith received

the close assistance of counsel. Smith twice conferred with his counsel during the

plea hearing regarding the factual basis for the plea. In addition, Smith averred

that he had discussed the charge and evidence with his counsel, and stated that he

was fully satisfied with his counsel’s representation and advice. Smith has not

rebutted the strong presumption that his statements, made under oath, were true.

Accordingly, the district judge did not abuse his discretion in concluding that this

factor did not warrant withdrawal of Smith’s guilty plea.

       The district judge also correctly found that Smith’s plea was knowing and

voluntary. Smith alleges that he did not know that his lack of knowledge of the

minor’s true age could be a defense to the charge because his attorney told him that

his knowledge was irrelevant.1 Smith’s assertion is belied by his statements at his


       1
         In a prosecution under 18 U.S.C. § 2243(a), the government is not required to prove that
the defendant knew the age of the other person engaging in the sexual act. See 18 U.S.C.

                                               10
plea hearing. The issue of Smith’s knowledge of the minor’s age was a key issue

at that hearing. The magistrate judge made clear that he would not accept a guilty

plea unless Smith admitted that he knew the female was under sixteen at the time

they had sex. The judge even permitted Smith time to confer with his attorneys on

this issue. Following a recess, Smith acknowledged that he was aware that the

minor female he had sex with had not yet turned sixteen. We agree with the

district court that “[w]ithin the context of the colloquy, it is clear his attorney was

referencing the time of the sexual act when he used the past tense.” Doc. 30. at 5.

The district court therefore correctly discredited Smith’s current claim that he did

not know the female was less than sixteen years old at the time they had sexual

relations.

       Moreover, Smith has failed to show that his counsel’s performance in this

matter was inadequate or prejudicial. As with any ineffective assistance of counsel

claim, the burden was on Smith to prove that his counsel’s performance was

deficient. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The record does not

contain any testimony from Smith’s prior attorneys who represented him on the

guilty plea. “[W]here the record is incomplete or unclear about [counsel]’s actions,



§ 2243(d). However, “it is a defense, which the defendant must establish by a preponderance of
the evidence, that the defendant reasonably believed that the other person had attained the age of
16 years.” 18 U.S.C. § 2243(c)(1).

                                                11
we will presume that he did what he should have done, and that he exercised

reasonable professional judgment.” Chandler v. United States, 218 F.3d 1305,

1314 n.15 (11th Cir. 2000) (en banc) (quotation marks and citation omitted).

Smith’s unsubstantiated allegation, made nine months after he pled guilty, that his

attorney misled him is insufficient to rebut the strong presumption that counsel

rendered adequate assistance. Even if we were to assume that counsel acted

unprofessionally, Smith has failed to establish any prejudice. As noted, Smith

admitted at the plea hearing that he knew the minor was under the age of sixteen at

the time he had sexual relations with her. The government’s proffer also indicated

that the minor told Smith that she was under sixteen when they met, as did the

minor’s mother. Given these factors, it is unlikely this defense would have

prevailed at trial. In other words, Smith cannot show any prejudice from his

attorney’s alleged error. See Hill, 474 U.S. at 59, 106 S. Ct. at 371. The record

thus supports the district court’s finding that Smith entered a knowing and

voluntary plea.

      Because Smith has failed to satisfy the first two prongs of the Buckles

analysis, we need not address the last two. See Gonzalez-Mercado, 808 F.2d at

801. Accordingly, we conclude that the district judge did not abuse his discretion

in denying Smith’s motion to withdraw his guilty plea.



                                         12
B. Enhancement of Smith’s Sentence

      Smith next contends that the district court erroneously enhanced his sentence

under U.S.S.G. § 4B1.5 based on his previous conviction for sexual misconduct

under Alabama Code § 13A-6-65.

      We review “de novo the district court’s interpretation of criminal statutes

and sentencing guidelines.” United States v. Krawczak, 331 F.3d 1302, 1305 (11th

Cir. 2003). The sentencing guideline applied here, U.S.S.G. § 4B1.5, provides that

any defendant convicted of a covered sex crime who has sustained at least one “sex

offense conviction” is subject to an enhanced offense level and criminal history

category. U.S.S.G. § 4B1.5. Smith’s conviction under Chapter 109A, 18 U.S.C.

§ 2243(a), is a covered sex crime for purposes of U.S.S.G. § 4B1.5. See id. at

comment. (n.2).

      A “sex offense conviction” is defined in the repeat offender enhancement

statutes of 18 U.S.C. § 2426(b) and 18 U.S.C. § 2247(b). See id. at comment.

(n.3(A)(ii)) (defining “sex offense conviction” as “any offense described in 18

U.S.C. § 2426(b)(1)(A) or (B), if the offense was perpetrated against a minor”); 18

U.S.C. § 2247(b) (“In this section, the term ‘prior sex offense conviction’ has the

meaning given that term in section 2426(b).”). Pursuant to § 2426(b)(1), a “prior

sex offense conviction” includes a state conviction “consisting of conduct that



                                          13
would have been an offense” under Chapters 117, 109A, or 110 of Title 18 of the

United States Code, or 18 U.S.C. § 1591, if it had been committed in a federal

jurisdiction. 18 U.S.C. § 2426(b)(1)(B). Here, the district court determined that

Smith’s prior state conviction for sexual misconduct under Alabama Code § 13A-

6-65 triggered the enhancement statutes.

      In making this determination, the district court looked behind the judgment

of conviction to Smith’s underlying conduct. Ordinarily, a sentencing court may

“consider only the fact of conviction and the statutory definition of the prior

offense.” United States v. Breitweiser, 357 F.3d 1249, 1254 (11th Cir. 2004)

(quotation marks and citation omitted). This “categorical approach” prevents the

court from conducting “mini-trials” on a defendant’s prior conviction. Id.

(quotation marks and citation omitted). A court may depart from this approach and

consider the underlying conduct, however, when the sentence enhancement statute

is based on a defendant’s prior conduct or crime, rather than proof of the elements

of a prior offense. See id. Additionally, the judgment of conviction and the

underlying statute must be ambiguous. See id. at 1255. Such ambiguity may occur

where the underlying state statute encompasses some offenses which trigger the

enhancement statute and others which do not. See id.

      In Breitweiser, for example, the defendant was convicted under a New



                                           14
Jersey statute prohibiting the endangerment of child welfare. See id. The statute

was ambiguous because a person convicted under the statute may have had sexual

contact with a minor, or may have not. See id. It was thus impossible to tell from

the face of the statute whether a conviction qualified as a “prior sex offense

conviction” under 18 U.S.C. § 2247. Id. In addition to this ambiguity, the

sentence enhancement statutes, 18 U.S.C. §§ 2247 and 2426(b)(1)(B), focused on

the defendant’s conduct and not on the prior offense’s elements. See id.

Accordingly, we concluded that the district court properly looked past the

conviction to the defendant’s underlying conduct. See id.

      As in Breitweiser, the district court correctly looked behind the judgment of

conviction to Smith’s underlying conduct. First, the sentence enhancement statutes

analyzed in Breitweiser are also at play here. Those statutes, 18 U.S.C. §§ 2247

and 2426(b)(1)(B)), are based on the defendant’s prior conduct rather than proof of

the elements of the prior offense. See id. Second, Smith’s judgment of conviction

is ambiguous because it stated only that he pled guilty to sexual misconduct

without citing the specific subsection of the Alabama statute that he violated.

Finally, the Alabama statute itself is ambiguous. That statute provides that a

person commits the misdemeanor offense of sexual misconduct if:

      (1) Being a male, he engages in sexual intercourse with a female
      without her consent, under circumstances other than those covered by

                                          15
       [the crimes of first-degree rape] and [statutory/second-degree rape]; or
       with her consent where consent was obtained by the use of any fraud
       or artifice; or . . .

       (3) He or she engages in deviate sexual intercourse2 with another
       person under circumstances other than those covered by [the crimes of
       first-degree sodomy] and [second-degree sodomy]. Consent is no
       defense to a prosecution under this subdivision.

Ala. Code § 13A-6-65(a). Both of these subsections are ambiguous because they

encompass some conduct that would be a qualifying federal sex offense under the

enhancement statutes and some that would not.

       For example, a male prison official would violate both 18 U.S.C. § 2243 and

Alabama Code § 13A-6-65(a)(1) by having sex with a female prisoner when the

consent was obtained by fraud. See 18 U.S.C. § 2243(b)3 (criminalizing sexual

acts between a prison official and a prisoner, regardless of consent); Ala. Code §

13A-6-65(a)(1) (criminalizing sex when the consent was obtained by fraud).

However, outside the prison context, a man who obtained a woman’s consent for




       2
         Deviate sexual intercourse means “[a]ny act of sexual gratification between persons not
married to each other involving the sex organs of one person and the mouth or anus of another.”
Ala. Code. § 13A-6-60(2).
       3
          A person commits the offense of sexual abuse of a ward, who is in federal jurisdiction
or a federal prison, if that person “knowingly engages in a sexual act with another person who is
– (1) in official detention; and (2) under the custodial, supervisory, or disciplinary authority of
the person so engaging.” 18 U.S.C. § 2243(b).

                                                16
sex through fraud would violate only Alabama law. See 18 U.S.C. § 2242(1)4

(criminalizing a sexual act caused by a threat of non-physical force or non-physical

fear, but not criminalizing a sexual act when the consent was obtained by fraud);

Ala. Code § 13A-6-65(a)(1). Similarly, § 13A-6-65(a)(3) is ambiguous because a

prison official having consensual sodomy with a prisoner would violate both that

section and 18 U.S.C. § 2243(b). See 18 U.S.C. § 2243(b); Ala. Code § 13A-6-

65(a)(3) (criminalizing consensual sodomy). However, consensual sodomy is not

otherwise prohibited under Chapters 109A, 110, or 117 of Title 18.

       As these examples demonstrate, it is impossible to tell from the face of

Alabama Code § 13A-6-65 whether Smith’s prior conviction satisfied the

enhancement statutes. This ambiguity permitted the district court to look past the

conviction to Smith’s underlying conduct. See Breitweiser, 357 F.3d at 1255. The

underlying conduct, sexual relations with a female who was between the ages of

twelve and sixteen, was the same as alleged in the federal case except that it did not

happen on a federal installation. Doc. 65 at 5. Smith’s prior conviction thus

qualified as a “prior sex offense conviction” under § 2426(b)(1)(B) because it

would violate 18 U.S.C. § 2243(a) if committed within a federal jurisdiction. See


       4
         A person commits the crime of sexual abuse if he or she, while in a federal jurisdiction
or prison, knowingly “causes another person to engage in a sexual act by threatening or placing
that other person in fear (other than by threatening or placing that other person in fear that any
person will be subjected to death, serious bodily injury, or kidnapping).” 18 U.S.C. § 2242(1).

                                                17
18 U.S.C. § 2426(b)(1)(B). Accordingly, the district court correctly enhanced

Smith’s sentence pursuant to U.S.S.G. § 4B1.5.

                                III. CONCLUSION

      The district court did not abuse its discretion in denying Smith’s motion to

withdraw his guilty plea as Smith failed to establish any fair or just reason for a

withdrawal. The district court also correctly looked beyond the judgment of

Smith’s prior state conviction to determine that he qualified for a sentencing

enhancement under U.S.S.G. § 4B1.5. Accordingly, we AFFIRM Smith’s

conviction and sentence.

      AFFIRMED.




                                          18
