USA v. Daniel Solano

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14191
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL SOLANO,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cr-00293-SCJ-CCB-1
____________________
USCA11 Case: 21-14191 Date Filed: 10/21/2022 Page: 1 of 5

-- 1 of 5 --

2 Opinion of the Court 21-14191
Before N EWSOM , BRASHER , and B LACK , Circuit Judges.
PER CURIAM:
Daniel Solano appeals his conviction for possession of a fire-
arm by a person with a felony conviction. First, he asserts his con-
viction should be reversed for ineffective assistance of counsel be-
cause his counsel failed to argue his
pro se motion to suppress. Sec-
ond, he contends the district court erred by not granting his request
for a new attorney—asserting the district court should have asked
him more questions during the plea colloquy about why he was
unhappy with his counsel’s representation—and the court’s failure
to do so resulted in an unknowing and involuntary plea.
I. DISCUSSION
A. Ineffective Assistance of Counsel
We dismiss Solano’s ineffective assistance of counsel claim
without prejudice because the record is not sufficiently developed
to address this claim.
See United States v. Patterson, 595 F.3d 1324,
1328 (11th Cir. 2010) (stating generally we will not consider inef-
fective-assistance-of-counsel claims on direct appeal “where the
district court did not entertain the claim nor develop a factual rec-
ord” (quotation marks omitted)). Although the district court
briefly addressed ineffective assistance of counsel in determining
whether to grant Solano’s motion to remove counsel, the record
does not contain any arguments supporting Solano’s claim that his
counsel was ineffective for failing to refile or litigate his
pro se
USCA11 Case: 21-14191 Date Filed: 10/21/2022 Page: 2 of 5

-- 2 of 5 --

21-14191 Opinion of the Court 3
motion to suppress. Therefore, we dismiss the claim without prej-
udice to allow Solano to raise this claim in a § 2255 motion.
See
Massaro v. United States, 538 U.S. 500, 504 (2003) (stating the pre-
ferred method for raising an ineffective-assistance claim is through
a 28 U.S.C. § 2255 motion “even if the record contains some indi-
cation of deficiencies in counsel’s performance”);
United States v.
Carthen, 906 F.3d 1315, 1319 (11th Cir. 2018) (dismissing a claim
without prejudice so the defendant could raise it later in a § 2255
motion).
B. Request for New Attorney
As an initial matter, Solano has abandoned any argument
the district court erred in denying his motion for a new attorney,
as he does not say how the court erred or provide arguments or
authority in support.
See Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 681 (11th Cir. 2014) (stating we “have long held that
an appellant abandons a claim when he either makes only passing
references to it or raises it in a perfunctory manner without sup-
porting arguments and authority”). Instead, he alleges the error in
his issue statement and notes the court denied his motion, which is
insufficient to preserve the issue.
See United States v. Montenegro,
1 F.4th 940, 944 n.3 (11th Cir. 2021) (“[S]imply stating that an issue
exists, without further argument or discussion, . . . constitutes
abandonment of that issue and precludes [this Court’s] considering
the issue on appeal.”(quotation marks omitted)).
To the extent Solano contends his plea was not knowing and
voluntary because the court failed to further question him on the
USCA11 Case: 21-14191 Date Filed: 10/21/2022 Page: 3 of 5

-- 3 of 5 --

4 Opinion of the Court 21-14191
issue of his satisfaction with counsel, we review this issue only for
plain error.1
See United States v. Moriarty, 429 F.3d 1012, 1018-19
(11th Cir. 2005) (stating we apply a plain error standard of review
when the defendant does not challenge his guilty plea as unknow-
ing or involuntary in the district court). Presuming all the state-
ments Solano made during the plea colloquy are true, there was no
error because the district court asked if Solano was entering into
the plea agreement knowingly and voluntarily, and he confirmed
that he was.
See id. at 1019 (“A guilty plea involves the waiver of a
number of a defendant’s constitutional rights and must therefore
be made knowingly and voluntarily to satisfy the requirements of
due process.”);
United States v. Medlock, 12 F.3d 185, 187 (11th Cir.
1994) (applying a “strong presumption” that statements made by a
defendant during his plea colloquy are true). Further, the district
court asked if Solano was satisfied with his counsel, and he agreed
that he was.
See Medlock, 12 F.3d at 187. Solano has not pointed
to any statute, rule, or precedent from this Court or the Supreme
Court holding it is an error for the district court not to further ques-
tion the defendant during the plea colloquy to see if he was know-
ingly and voluntarily entering into a plea agreement when he had
previously stated that he was unhappy with his counsel.
See United
States v. Innocent, 977 F.3d 1077, 1081 (11th Cir. 2020),
cert denied,
1 Although the Government argues this argument is precluded by the appeal
waiver in Solano’s plea agreement, an appeal waiver does not bar claims that
challenge whether the plea itself was knowing and voluntary.
United States
v. Puentes-Hurtado, 794 F.3d 1278, 1284-85 (11th Cir. 2015).
USCA11 Case: 21-14191 Date Filed: 10/21/2022 Page: 4 of 5

-- 4 of 5 --

21-14191 Opinion of the Court 5
141 S. Ct. 2827 (2021) (explaining an error is plain if the explicit lan-
guage of a statute or rule or precedent from the Supreme Court or
us directly resolves the issue). Accordingly, we affirm as to this
issue.
II. CONCLUSION
We dismiss Solano’s ineffective assistance of counsel claim
without prejudice because the record is not sufficiently developed
to address this claim. Solano has abandoned any challenge to the
district court’s denial of his motion for new counsel by failing to
adequately brief the issue on appeal. Further, he has not shown
the district court plainly erred in not further questioning him dur-
ing the plea colloquy regarding his satisfaction with his counsel.
DISMISSED IN PART AND AFFIRMED IN PART.
USCA11 Case: 21-14191 Date Filed: 10/21/2022 Page: 5 of 5

-- 5 of 5 --