USA v. Michelle Duval

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 6, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-11964
Non-Argument Calendar
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D.C. Docket No. 8:10-cr-00136-JSM-EAJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHELLE DUVAL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 6, 2012)
Before MARCUS, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:

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Michelle Duval appeals her conviction and sentence for possession of a
firearm as a convicted felon. On appeal, she argues that the district court abused
its discretion by denying her motion to withdraw her guilty plea, and that the
district court erred in sentencing her pursuant to the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e).
I.
On appeal, Duval argues that the district court erred in denying her motion
to set aside her guilty plea because the record shows that she entered her plea
without knowledge of the nature of the charges against her or the possible
sentences she could receive.
We review a district court’s decision to deny a motion to withdraw a guilty
plea for an abuse of discretion. United States v. Brehm, 442 F.3d 1291, 1298
(11th Cir. 2006). The district court does not abuse its discretion unless its
decision is arbitrary or unreasonable. Id. We consider four factors when
reviewing the district court’s decision: (1) whether close assistance of counsel was
available; (2) whether the plea was knowing and voluntary; (3) the conservation of
judicial resources; and (4) prejudice to the government if the defendant were
allowed to withdraw her plea. Id.
Here, Duval has challenged only whether the plea was knowing and
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voluntary. A guilty plea is knowing and voluntary if the defendant entered the
plea without coercion and with the understanding of the nature of the charges and
the consequences of the plea. United States v. Brown, 586 F.3d 1342, 1346 (11th
Cir. 2009). There is a strong presumption that the statements made during the plea
colloquy are true. United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994).
The defendant bears a heavy burden to show statements made under oath at a plea
colloquy were false. United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988).
It is up to the district court to determine the defendant’s credibility and the weight
of a defendant’s assertions in support of a motion to withdraw a guilty plea.
Brehm, 442 F.3d at 1298.
At an extensive plea colloquy, Duval indicated that she had not received any
threats, that she was fully satisfied with her attorney’s work, that she understood
the charges against her (including four previous felonies that would enhance her
punishment under the ACCA), that she had read and signed the plea agreement,
that the judge was not bound by any government recommendations, that she
understood her waiver of appeal, that she was giving up her trial rights, and that
she was facing a minimum of fifteen years in prison with a maximum of life.
Duval has not demonstrated that her guilty plea was either unknowing or
involuntary, particularly in light of the heavy burden she would need to shoulder
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in order to prove that her statements made under oath at the plea hearing were
false. The record reflects that Duval was on notice of the nature and
circumstances of the charges against her, the rights that she was foregoing, and the
potential minimum and maximum sentences. Thus, the district court did not abuse
its discretion in denying her motion to withdraw her guilty plea.
II.
Duval also argues that the district court erred in sentencing her pursuant to
the ACCA. Duval challenges the dates of the predicate convictions used to1
impose the ACCA enhancement, arguing that the government failed to meet its
burden of showing that her crimes arose out of separate and distinct criminal
episodes.
Whether prior convictions meet the ACCA’s separate offenses requirement
is a legal determination that we review de novo. United States v. Pope, 132 F.3d
684, 689 (11th Cir. 1998).
The ACCA imposes a mandatory minimum sentence of fifteen years’
imprisonment for defendants who have three previous convictions “for a violent
Duval’s plea agreement contains a waiver of her right to appeal her sentence1
except on the grounds that (a) the sentence exceeds the defendant’s applicable guidelines range,
(b) the sentence exceeds the statutory maximum penalty, or (c) the sentence violates the Eighth
Amendment. The government concedes that the waiver does not bar her instant appeal, so we
proceed to address the merits.
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felony or a serious drug offense, or both, committed on occasions different from
one another.” 18 U.S.C. § 924(e)(1). We have held that under § 924(e)’s
different-occasions inquiry, a sentencing court must determine whether “the
perpetrator had a meaningful opportunity to desist his activity before committing
the second offense.” Pope, 132 F.3d at 690. In making this determination, a
“showing that the crimes reflect distinct aggressions, especially if the defendant
committed the crimes in different places, is particularly probative.” Id. at 692.
The findings of fact of the sentencing court may be based on evidence heard
during trial, facts admitted by a defendant’s plea of guilty, undisputed statements
in the presentence investigation report (“PSI”), or evidence presented at the
sentencing hearing. United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir.
1989).
Here, the PSI indicates that on September 2, 1992, Duval was arrested for
the sale of rock cocaine and on December 21, 1992, she was convicted in Manatee
County; on February 11, 1995, she was arrested for robbery of a J.C. Penney store
and on February 26, 1996, she was convicted in Pinellas County; and on July 7,2
1995, she was arrested for sale of cocaine and on April 1, 1996, she was convicted
Duval contends that this conviction was vacated, but the PSI confirms that the2
sentence–not the conviction–was vacated, and Duval was then re-sentenced.
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in Pinellas County. These dates of conviction are confirmed by Duval’s signed
plea agreement.
The PSI and Duval’s prior admissions support the district court’s finding
that these convictions arose out of separate criminal episodes. Thus, there was no
error in the court’s determination that Duval had three prior violent felony or
serious drug convictions for the purposes of the ACCA.
Duval also contends that the prosecutor failed to conform with 21 U.S.C.
§ 851, which states in relevant part:
No person who stands convicted of an offense under this part shall be
sentenced to increased punishment by reason of one or more prior
convictions, unless before . . . entry of a plea of guilty, the United
States attorney files an information with the court (and serves a copy
of such information on the person or counsel for the person) stating in
writing the previous convictions to be relied upon.
21 U.S.C. § 851(a)(1) (emphasis added). However, Duval was not prosecuted
under 21 U.S.C. § 851, which deals with controlled substances. She was
prosecuted under 18 U.S.C. § 924(e), which is the ACCA.
AFFIRMED.
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