USA v. Antonio Maurice Bing

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 19, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-16441
Non-Argument Calendar
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D. C. Docket No. 08-00281-CR-J-32MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO MAURICE BING,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(July 19, 2010)
Before BLACK, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
Antonio Maurice Bing appeals the district court’s denial of his motion under

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Fed. R. Crim. P. 11(d) to withdraw his plea of guilty to being a convicted felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court did
not abuse its discretion in denying the motion, and therefore we affirm.
I.
With the assistance of newly appointed counsel, Bing filed a motion to
withdraw his guilty plea six months after having entered it. He asserted that he did
not enter his plea knowingly because of erroneous advice he received from his
previous counsel, namely that despite his plea he could still appeal the denial of
two previously filed motions to suppress.
Before resolving Bing’s motion, the district court held an evidentiary
hearing during which Bing and his former counsel were the only witnesses. Bing
testified that he always wanted to retain the right to appeal the two suppression
motions and that his counsel presented four options for going forward in his case
that would allow him to do so. Of those options, Bing chose to plead guilty
without a plea agreement and contended that counsel specifically informed him
that this option would preserve his right to appeal the motions as opposed to
merely preserving his right to appeal his sentence once imposed. On cross-
examination, Bing was confronted with the following acknowledgment during his
change-of-plea hearing:
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The Court: Now, you may have defenses to your respective
charge or charges. But if you plead guilty, you waive
and give up your right to assert these defenses.
Also, by pleading guilty you also waive and give
up your right to challenge the way the government may
have obtained any evidence, statement or confession in
your respective cases.
In addition, by pleading guilty you may lose the
right to challenge on appeal any rulings which the Court
has made in your case. You understand, Mr Bing?
Bing: Yes, sir.
Bing explained that despite these recorded statements he relied on his counsel’s
advice and understood the magistrate judge at that time as saying that he “may or
may not” be giving up his right to appeal the motions. Bing also testified that
following the entry of his guilty plea his counsel reassured him that his right to
appeal was secure despite the magistrate judge’s questioning.
The testimony of Bing’s previous counsel, who had 23 years of experience
practicing criminal law and handled thousands of change-of-plea hearings, directly
contradicted Bing’s account. He testified that he presented four options to Bing
following the denial of the motions to suppress and explained how Bing’s right to
appeal the motions would be affected under the various options. In particular, he1
Bing’s counsel also advised Bing about entering a conditional plea but counseled that1
such a plea was not viable because the prosecutors in that district had never agreed to one before.
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advised that if Bing pleaded guilty he would waive his right to challenge the
rulings on the motions to suppress but would preserve other appellate rights with
respect to his sentence. He did not perceive Bing as having any difficulty
understanding the options or their consequences. He also denied having told Bing
after the change-of-plea hearing that his appellate rights on the motions were
preserved despite what the magistrate judge said. Lastly, the first he heard of
Bing’s desire to preserve those rights at all cost was when Bing filed his motion to
withdraw his guilty plea.
II.
We review a district court’s denial of a motion to withdraw a guilty plea for
abuse of direction. United States v. Najjar, 283 F.3d 1306, 1307 (11th Cir. 2002).
“The good faith, credibility and weight of a defendant’s assertions” in support of
the motion are issues for the trial court to decide. United States v. Buckles, 843
F.2d 469, 472 (11th Cir. 1988). We thus accept the district court’s findings of fact
from Bing’s evidentiary hearing as correct unless they are clearly erroneous. See
Bush v. Singletary, 988 F.2d 1082, 1089 (11th Cir. 1993).
A defendant may withdraw a guilty plea before the court imposes sentence if
the defendant shows a “fair and just reason” for requesting the withdrawal. Fed. R.
Crim. P. 11(d)(2)(B). In determining whether a defendant has met his burden of
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showing 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 would be prejudiced if the
defendant were allowed to withdraw his plea.’” Najjar, 283 F.3d at 1309 (quoting
Buckles, 843 F.2d at 472.). When a defendant receives close assistance of counsel
and enters his plea knowingly and voluntarily, we give little weight to the latter
two factors. United States v. Gonzales-Mercado, 808 F.2d 796, 801 (11th Cir.
1987).
A core consideration in determining whether a defendant has entered his
plea knowingly is whether the defendant understood the consequences of his plea.
See United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005). When a
defendant states during the plea colloquy that he understands those consequences,
there is a presumption that his statements are true. See United States v. Medlock,
12 F.3d 185, 187 (11th Cir. 1994).
The district court did not abuse its discretion in denying Bing’s motion.
During Bing’s plea colloquy, the district court specifically informed Bing of the
adverse consequence of his plea on his right “to challenge the way the government
may have obtained any evidence, statement or confession” in his case. Bing
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acknowledged that he understood this consequence. Even if Bing misheard or
misunderstood the magistrate judge’s question, the record shows that Bing was
closely counseled prior to his change-of-plea hearing regarding the consequences
of a guilty plea, and substantial evidence existed for the district court to conclude
that Bing understood those consequences.
Specifically, Bing’s counsel said he advised Bing that by entering into a
guilty plea he would waive his right to appeal the motions to suppress but would
retain his right to appeal his sentence. Neither Bing’s testimony nor his counsel’s
support a finding that Bing confused the two. Rather, Bing testified that counsel
explicitly informed him that his right to appeal the motions would be preserved and
that counsel reassured him of that fact following the change-of-plea hearing. His
counsel, however, flatly denied that he provided such advice, either before or after
the hearing, and also denied that Bing clearly conveyed his desire to preserve his
right to appeal the motions under all circumstances. The district court credited
Bing’s counsel’s version of the facts, and we cannot say that choice was clearly
erroneous in light of the testimony presented. Anderson v. City of Bessemer City,
470 U.S. 564, 574, 105 S. Ct. 1504, 1511 (1985) (“Where there are two
permissible views of the evidence, the factfinder’s choice between them cannot be
clearly erroneous.”). Accordingly, there is no fair and just reason for allowing
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Bing to withdraw his guilty plea.
For these reasons, we AFFIRM the district court’s denial of Bing’s motion.
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