USA v. Robert Louis Perkins

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14183
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT LOUIS PERKINS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 4:21-cr-00032-CDL-MSH-2
____________________
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2 Opinion of the Court 22-14183
Before R OSENBAUM , J ILL PRYOR , and B RANCH , Circuit Judges.
PER CURIAM:
Robert Perkins pleaded guilty to one count of possession
with intent to distribute heroin, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C). On appeal, Perkins argues that the
district court abused its discretion when it denied his motion to
withdraw his guilty plea based on the alleged ineffective assistance
of Perkins’s counsel and plainly erred in failing to conduct an
evidentiary hearing on his claim prior to denying the motion to
withdraw his plea.1 After review, we affirm.
I. Background
In 2021, a grand jury indicted Perkins, his wife Taylor, and a
third individual, Constantine Varazo, on one count of possession
with intent to distribute methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(A)(viii), and 18 U.S.C. § 2 (Count
1 To the extent that Perkins raises a separate substantive ineffective-assistance-
of-counsel claim, in the interest of avoiding piecemeal litigation and because
ineffective-assistance claims are better suited for a timely 28 U.S.C. § 2255
motion upon which a record can be established specifically on the issue of
ineffective assistance, we decline to address this claim at this time. See Massaro
v. United States, 538 U.S. 500, 504 (2003) (explaining that “in most cases a
motion brought under § 2255 is preferable to direct appeal for deciding claims
of ineffective assistance”); United States v. Bender, 290 F.3d 1279, 1284 (11th Cir.
2002) (“We will not generally consider claims of ineffective assistance of
counsel raised on direct appeal where the district court did not entertain the
claim nor develop a factual record.”). Perkins is free to assert this claim in a
subsequent § 2255 motion.
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22-14183 Opinion of the Court 3
One), and one count of possession with intent to distribute heroin,
in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and 18 U.S.C.
§ 2 (Count Two).2 Perkins pleaded guilty to Count Two, and in
exchange the government agreed to dismiss Count One.
Briefly, the parties stipulated to the following facts. In the
late night hours of March 15, 2020, a local sheriff’s deputy
attempted a traffic stop of a vehicle for failing to dim its high beam
headlights when approaching other vehicles. A high speed chase
ensued, and the occupants of the vehicle were observed throwing
things out of the vehicle’s windows during the chase. The vehicle
was eventually stopped following a PIT maneuver.3 Officers
identified Perkins as the driver, his wife as the front seat passenger,
and Varazo as the backseat passenger. Officers then seized the
items that were thrown out the car window during the chase,
which included multiple bags of suspected ecstasy; a bag of
suspected marijuana; some needles; and a bookbag containing a
handgun, several smaller bags of methamphetamine, heroin, a set
2 Varazo was also charged with a separate firearms count that is not relevant
to this appeal.
3 PIT stands for “precision immobilization technique.” This technique
“involves easing up to and making contact with a fleeing suspect’s car in such
a way as to cause the target car to snap sideways and come to a halt.” Ga.
Ass’n of Chiefs of Police, Law Enforcement Pursuits in Georgia: Review and
Recommendations (Rev. Aug. 8, 2006) (quoting National Institute of Justice,
High-Speed Pursuit: New Technologies Around the Corner, U.S. Dep’t of Justice
(Oct. 1996) at 4–5).
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4 Opinion of the Court 22-14183
of scales, and Varazo’s cell phone.4 Upon booking, Perkins’s wife,
Taylor, provided a voluntary statement to police, in which she
indicated that they had driven from Pensacola to Cordele, Georgia
to purchase drugs. Varazo had offered to pay the Perkinses to drive
him. At the time of the stop, they had completed the transaction
and were driving home, and Varazo began throwing drugs out the
window when the police attempted to stop the vehicle. She
confirmed that she knew that Varazo had “some ‘ice,’ heroin, and
‘meth.’” Perkins, himself, was unaware of the amount of drugs
they purchased.
The plea agreement provided that, at sentencing, the district
court would “determine any pertinent fact by a preponderance of
the evidence” and could “consider any reliable information,
including hearsay.” The plea agreement detailed that Perkins faced
a statutory maximum sentence of 20 years’ imprisonment, and that
the district court was “not bound by any estimate of the probable
sentencing range that [Perkins] may have received from [his]
attorney, the Government, or the Probation Office.” Furthermore,
the agreement provided that Perkins
[would] not be allowed to withdraw [his] plea because
[he] ha[d] received an estimated guideline range from
the Government, [his] attorney, or the Probation
Office which is different from the guideline range
4 Testing results confirmed that the bag contained 190.47 grams of pure
methamphetamine, 27 grams of pure heroin, and another 4.5 grams of pure
methamphetamine.
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22-14183 Opinion of the Court 5
computed . . . in the Presentence Investigation Report
[“PSI”] and found by the [c]ourt to be the correct
guideline range.5
Additionally, the agreement provided that Perkins would have the
opportunity to review and object to the information contained in
the PSI, but that Perkins also understood and had discussed with
his counsel that any objections or challenges to the PSI or the
court’s rulings on said objections would not be grounds for
withdrawing the plea.6
Perkins initialed each page of the agreement and signed the
agreement under the paragraph declaring that he read and
understood the provisions of the agreement. Perkins’s counsel,
Jennifer Curry, also signed the agreement, attesting that she had
read and explained the agreement to Perkins, and that she believed
that he understood its terms.
At the change of plea hearing, Perkins, age 38, confirmed
that he was a high school graduate and could read and write. He
confirmed that he understood what he was charged with in Count
2, and that he faced a statutory maximum of 20 years’
5 Moreover, the agreement confirmed that the district court had the authority
to impose a more severe or less severe sentence than that provided for by the
guideline range.
6 The agreement also contained a sentence-appeal waiver, which provided that
Perkins waived his right to appeal his sentence with the exception that he
could appeal if the sentence exceeded the advisory guideline range as
calculated by the district court or exceeded the statutory maximum. Perkins
also preserved his “right to bring a claim for ineffective assistance of counsel.”
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6 Opinion of the Court 22-14183
imprisonment. The district court explained that the guidelines
were advisory and that it could impose a sentence above or below
that called for by the guidelines. Perkins stated that he understood
and that he had discussed the application of the guidelines with his
counsel and understood how the guidelines applied. The district
court also cautioned that Perkins’s ultimate sentence might be
different from any estimate provided to Perkins by his attorney or
other sources, and Perkins confirmed that he understood.
Next, Perkins confirmed that it was his initials and signature
that appeared on the plea agreement and that he read the entire
agreement, discussed it with his attorney, and that he understood
it. The district court explained that it was not bound by any
sentencing recommendations in the plea agreement, and that even
if it did not follow such recommendation, that would not be a basis
for Perkins to withdraw his plea. Perkins stated that he
understood. Perkins stated that he was satisfied with his counsel’s
advice and representation. Finally, Perkins averred that no one had
promised him anything that was not written down in the plea
agreement, and his counsel agreed with that representation. When
asked how he was pleading to Count Two, Perkins stated he was
guilty, that he was entering the plea freely and voluntarily, and that
no one had promised him anything to induce a plea or threatened
or coerced him into pleading guilty. Perkins asserted that he was
in fact guilty of the offense. The government then set forth the
factual basis for the plea, including that the substances found in the
bookbag tested positive for 190.47 grams of pure
methamphetamine, 27 grams of heroin, and another 4.5 grams of
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22-14183 Opinion of the Court 7
pure methamphetamine. Perkins agreed that the government’s
statement of facts was true. Accordingly, the district court
accepted his plea of guilty.
Prior to sentencing, the United States Probation Office
prepared a PSI. The probation officer held Perkins accountable for
the amount of methamphetamine and heroin recovered in the
bookbag—194.97 grams of methamphetamine and 27 grams of
heroin. The total converted drug weight equaled 3,926.4 kilograms
of which 3,889.4 kilograms was methamphetamine and 27
kilograms was heroin—resulting in a base offense level of 32. The
probation officer added two levels for obstruction of justice
because Perkins “recklessly created a substantial risk of death or
serious bodily injury to another person in the course of fleeing
from a law enforcement officer.” The probation officer then
subtracted three levels for acceptance of responsibility, resulting in
an adjusted offense level of 31. An adjusted offense level of 31 and
Perkins’s criminal history category of VI resulted in a guidelines
range of 188 to 235 months’ imprisonment.
As relevant to this appeal, Perkins objected to being held
accountable for all of the drugs recovered in the backpack.7 He
maintained that “he was unaware of the total quantity of illegal
narcotics possessed by his codefendant, and he should not be held
accountable for the total quantity of narcotics found inside the
vehicle with his codefendant.” The probation officer maintained
7 Perkins raised another objection to the calculation of his criminal history
score that is not relevant to the issue on appeal.
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8 Opinion of the Court 22-14183
that Perkins was accountable for the total drug quantity as relevant
conduct, pursuant to U.S.S.G. § 1B1.3(a)(1)(B)(i).8 Additionally, the
probation officer noted that he relied on the amounts stipulated to
as part of the plea agreement.
At sentencing, Perkins reiterated his objection to the drug
quantity attributed to him, and his counsel maintained that “the
spirit of the [plea] agreement and the intent of it was to limit Mr.
Perkins’[s] exposure for purposes of sentencing, to limit the
amount of drugs he was accepting responsibility, for being held
accountable for.” In other words, it was Perkins’s position that he
was accepting responsibility via the plea agreement only for the
heroin charged in Count Two, not the methamphetamine charged
in Count One. Counsel also reiterated that Perkins was simply
8 This guideline provides that when, as here, there is “jointly undertaken
criminal activity” the base offense level under the guidelines “shall be
determined on the basis of”:
(B) . . . all acts and omissions of others that were—
(i) within the scope of the jointly undertaken criminal
activity,
(ii) in furtherance of that criminal activity, and
(iii) reasonably foreseeable in connection with that
criminal activity;
that occurred during the commission of the offense of
conviction, in preparation for that offense, or in the course of
attempting to avoid detection or responsibility for that offense.
U.S.S.G. § 1B1.3(a)(1)(B).
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22-14183 Opinion of the Court 9
hired as a driver, and he was unaware of the amount of drugs that
Varazo purchased. Nevertheless, upon questioning from the
district court as to the terms of the plea agreement, counsel
conceded that nothing in the plea agreement limited Perkins’s
responsibility to the 27 grams of heroin, and that the factual
stipulation included the methamphetamine.
In response, the government argued that the heroin and
methamphetamine were discovered in the same bookbag and,
under U.S.S.G. § 1B1.3, the methamphetamine qualified as
relevant conduct. The government asserted that Perkins was
accountable for all of the drugs in the bookbag, even if he did not
know the actual amount purchased, because he admitted that he
knew they were traveling to buy drugs, and he told law
enforcement that they had planned to resell the drugs once they
got home. The government maintained that there was never any
suggestion in the plea negotiations that the government would
hold Perkins accountable for only the heroin, which is one reason
why the government included the methamphetamine in the plea
agreement.
The district court overruled Perkins’s objection, concluding
that the methamphetamine qualified as relevant conduct under the
guidelines. Thereafter, Perkins stated that he wished to “withdraw
[his] plea for insufficient counseling because [he] was misle[]d.” He
asserted that he “was promised something different.” The
following colloquy occurred:
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10 Opinion of the Court 22-14183
THE COURT: Well, what do you mean you
“were promised something different”?
[PERKINS]: I was promised something that—when
they dismissed Count 1 and I was asked—I was asked
specifically if they dismissed Count 1, that I was
promised that I wouldn’t be held accountable for it.
THE COURT: So you were under the impression that
you would only be held accountable for the 27 grams
of heroin?
[PERKINS]: Yes, sir.
THE COURT: And it’s your contention that that’s
what you were told by your attorney?
[PERKNS]: Yes, sir.
THE COURT: So you wish to withdraw your plea
agreement unless the Court sentences you based on
you being accountable for just 27 grams of heroin; is
that correct?
[PERKINS]: Yes, sir.
THE COURT: And do we know what the difference
in his guideline range would be if he were only held
accountable for the 27 grams?
PROBATION OFFICER: I believe if he’s only held
[accountable] for the 27 grams, it would be a range of
41 to 51 months, I believe.
THE COURT: So it’s a substantial difference,
obviously. Well, I guess my concern . . . is whether
he has an adequate opportunity today to present all
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22-14183 Opinion of the Court 11
the evidence he wants to present on the withdrawal
of his guilty plea and we can go ahead and address
that today, or whether he needs to be given an
additional opportunity to develop and present
whatever evidence he wants to present.
Let me ask you this, Mr. Perkins: In support of your
motion or request to withdraw your guilty plea, do I
understand you to say that the only basis for that is
you believe you were provided with ineffective
assistance of counsel because you state that your
counsel told you that when the plea agreement
dismissed Count 1, that you would not be held
accountable at sentencing for any of the drugs except
for the heroin that’s referenced in Count 2?
[PERKINS]: Yes, sir. I was not told—I was not
presented with the relevant conduct.
The government argued that Perkins’s plea agreement
barred his withdrawal attempt, as it explicitly provided that Perkins
would not be allowed to withdraw his plea if the guidelines range
as calculated by the district court differed from any estimate he
may have received from counsel. Nevertheless, the government
conceded that a claim that one’s lawyer had told him something
different from the plea agreement he had signed could support a
motion to withdraw one’s plea.
Perkins’s attorney then stated the following on the record.
She does “not use the word ‘promise,’” and she did not “promise
anything” to Perkins. Indeed, it was her practice to “make it very
clear to every client that [she] cannot guarantee anything in any
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12 Opinion of the Court 22-14183
case, federal or at the state level. So no promises were ever made
from me or by me.” However, she explained that:
the spirit of th[e] plea agreement was, rather than
pleading to the meth count [Count One] which
carrie[d] a heavier sentence because the amount is
more, we pled to the heroin count because the
amount of drugs was in fact less than, for the
guideline range purposes. When it came to relevant
conduct, we did not include the firearm that was
found and was held—that was applied to [Varazo].
That was also in that same bag, and it could have been
applied to Mr. Perkins just as the total weight of all
the drugs.
That was the spirit of the agreement. That was the
spirit of the plea discussions. So the discussions I had
with Mr. Perkins did include that, that we are
pleading to the heroin count because the drug
amount, the weight, is less; and, therefore, his
exposure on that particular count would be
significantly less than if he pled to the first count with
the higher drug amount.[9] So that was the
discussion. . . .
Counsel confirmed that she understood the relevant conduct
guidelines. She denied ever telling Perkins that the court would
9 The government explained that Count One carried a mandatory minimum
of 10 years’ imprisonment and a statutory maximum of life. Whereas, Count
Two carried no mandatory minimum and a statutory maximum of only 20
years’ imprisonment.
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22-14183 Opinion of the Court 13
only consider the heroin or that his sentencing exposure was
limited to being held accountable only for the heroin. Rather, she
told Perkins only that she would try to argue for that, and that she
never made any guarantees.
Accordingly, having heard from counsel, the district court
concluded that “the record [was] fully developed as to what
happened,” and it determined that Perkins simply “had a
misunderstanding of what his attorney told him.” The court also
noted that the plea agreement expressly provided “that there were
no guarantees” and that “he couldn’t rely upon a recommendation
as to the guideline range from his attorney.” The district court then
denied Perkins’s motion to withdraw his plea, concluding that
Perkins had not satisfied the relevant factors and that there was no
fair and just reason to permit withdrawal of the plea.10 The district
court then gave Perkins an opportunity to speak before imposing
sentence, stating that Perkins could “say anything [he] wish[ed],”
and informing Perkins that it would consider his prior statement
about the weight of the drugs to constitute a request for a
downward variance so that he would receive a sentence as though
he had been held only for the 27 grams of heroin. Perkins stated
that he did not have anything else he wished to say.
10 The district court further explained that to the extent that Perkins
maintained his counsel rendered ineffective assistance in relation to the plea,
it was not ruling on his ineffective assistance allegation, and Perkins was free
to assert that claim in a collateral proceeding.
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14 Opinion of the Court 22-14183
After hearing additional argument from the parties as to the
appropriate sentence, the district court denied Perkins’s request for
a downward variance, and imposed a within-guidelines sentence of
192 months’ imprisonment to be followed by 3 years’ supervised
release. Neither party made any additional objections. This appeal
followed.
II. Discussion
Perkins argues that the district court erred in denying his
motion to withdraw his guilty plea, and he asserts for the first time
that the district court should have conducted an evidentiary
hearing on his motion. He maintains that his plea was not
knowingly and voluntarily entered because his counsel rendered
constitutionally ineffective assistance by assuring him that the
offense level would be based on only the heroin and would not
include the methamphetamine.11
“[T]here is no absolute right to withdraw a guilty plea prior
to imposition of a sentence,” and “[t]he decision to allow
withdrawal is left to the sound discretion of the trial court.” United
11 Perkins also asserts in passing, for the first time on appeal, that the sentence-
appeal waiver in the plea agreement was not knowing and voluntary because
of the same alleged ineffective assistance of counsel. Because the appeal
waiver does not serve to bar Perkins’s challenge to the validity of the plea
agreement and the government is not otherwise seeking to enforce the appeal
waiver, we decline to address this issue. See United States v. Puentes-Hurtado,
794 F.3d 1278, 1284 (11th Cir. 2015) (explaining that an appeal waiver does not
bar challenges to the validity and voluntary nature of the plea agreement
itself).
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22-14183 Opinion of the Court 15
States v. Buckles, 843 F.2d 469, 471 (11th Cir. 1988). “We review the
denial of a request to withdraw a guilty plea for abuse of discretion.
There is no abuse of discretion unless the denial is arbitrary or
unreasonable.” United States v. Brehm, 442 F.3d 1291, 1298 (11th
Cir. 2006) (quotation and internal citation omitted).
A defendant may withdraw an accepted guilty plea before
sentencing if he “can show a fair and just reason for requesting the
withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). In determining whether
the defendant has met his burden of demonstrating a fair and just
reason for withdrawal of the plea, a “district court may consider
the totality of the circumstances surrounding the plea,” 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.”
Buckles, 843 F.2d at 471–72 (internal citation omitted). “The good
faith, credibility and weight of a defendant’s assertions in support
of [the] motion . . . are issues for the trial court to decide.” Id. at
472. Furthermore, there is a “strong presumption” that statements
made by a defendant during his plea colloquy are true. United States
v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). Therefore, “when a
defendant makes statements under oath at a plea colloquy, he bears
a heavy burden to show his statements were false.” United States v.
Rogers, 848 F.2d 166, 168 (11th Cir. 1988).
Here, the district court did not abuse its discretion in
denying Perkins’s motion to withdraw his guilty plea based on
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16 Opinion of the Court 22-14183
Perkins’s allegations that his counsel had promised him that his
sentence would be based only on the heroin and not the
methamphetamine. Prior to ruling on the motion, the court
considered Perkins’s statements as to what his counsel told him and
obtained statements from the counsel as to whether she made the
alleged promises, which she denied. Additionally, Perkins’s plea
agreement expressly provided that the guidelines calculation or the
sentence he received could differ from any estimates he might have
received from his counsel, and that any disagreement on that point
would not be a ground for withdrawing his guilty plea. Perkins
initialed those pages and signed the agreement, including the
provision stating that he had read the agreement and understood
its terms. Moreover, the district court reviewed these provisions
with Perkins at the change-of-plea hearing, and Perkins confirmed
that he understood. We presume the truth of Perkins’s
statements.12 Medlock, 12 F.3d at 187; Rogers, 848 F.2d at 168;
Buckles, 843 F.2d at 471–72. In short, under the totality of the
circumstances, the district court’s denial of Perkins’s motion to
withdraw his guilty plea was not arbitrary or unreasonable. See
Brehm, 442 F.3d at 1298. And we cannot say it was outside the
range of permissible choices such that the district court abused its
discretion in denying withdrawal.
12 Perkins’s purported mistaken belief that he would receive a sentence based
solely on the heroin per his counsel’s advice simply was not reasonable in light
of the plea agreement and the district court’s discussion during the plea
colloquy that the ultimate guidelines range or sentence could be different from
any estimate Perkins may have received from his counsel.
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22-14183 Opinion of the Court 17
Relatedly, Perkins cannot show that the district court plainly
erred in failing to conduct an evidentiary hearing on his motion to
withdraw the guilty plea. As an initial matter, Perkins never
requested an evidentiary hearing in the district court, and he did
not object to the denial of his motion without one being held.
Accordingly, because he raises the issue of an evidentiary hearing
for the first time on appeal, we review only for plain error. United
States v. Johnson, 694 F.3d 1192, 1195 (11th Cir. 2012). In order to
succeed under plain-error review, Perkins must show that (1) there
was an error; (2) the error was plain; (3) the error affected his
substantial rights; and (4) the error “seriously affect[ed] the fairness,
integrity, or public reputation of judicial proceedings.” Id. An
appellant’s substantial rights are prejudiced when the error affected
the outcome of the district court proceedings. United States v.
Olano, 507 U.S. 725, 734 (1993). The burden is on the defendant to
show that the error affected the district court outcome. United
States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005). If the effect
of the error is uncertain, the defendant is not entitled to relief. Id.
at 1300. Perkins has not cited a single decision, from this Court or
elsewhere, holding that a district court errs by failing to hold an
evidentiary hearing on a defendant’s motion to withdraw his guilty
plea where the defendant himself has not requested one. Not only
that, but binding precedent suggests that, even where a defendant
requests an evidentiary hearing on his motion to withdraw, a
district court does not abuse its discretion in denying that request,
when, as here, it “conducted extensive Rule 11 inquiries prior to
accepting the guilty plea.” Brehm, 442 F.3d at 1298; see also United
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18 Opinion of the Court 22-14183
States v. Stitzer, 785 F.2d 1506, 1514 (11th Cir. 1986) (holding that
“[i]n light of the extensive Rule 11 inquiries which the trial court
made before accepting appellant’s plea,” the district court did not
abuse its discretion in refusing to conduct an evidentiary hearing
on the motion to withdraw). Under these circumstances, the
district court’s failure to hold an evidentiary hearing before
denying Perkins’s motion to withdraw was not error, much less
plain error. See United States v. Lejarde–Rada, 319 F.3d 1288, 1291
(11th Cir. 2003) (“[T]here can be no plain error where there is no
precedent from the Supreme Court or this Court directly resolving
[the issue].”).
Moreover, Perkins does not assert what information he was
prevented from presenting by the court’s failure to conduct an
evidentiary hearing, and he concedes that “it is impossible to know
whether [the district court’s] decision would have been the same
had it granted [him] an evidentiary hearing.” Because the effect on
Perkins’s substantial rights is at best uncertain, he is not entitled to
relief. See Rodriguez, 398 F.3d at 1300. Accordingly, we affirm.
AFFIRMED.
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