USA v. Mark Rory Whitehead

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10562
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK RORY WHITEHEAD,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:19-cr-00042-KOB-GMB-1
____________________
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2 Opinion of the Court 21-10562
Before J ORDAN, J ILL PRYOR , and L UCK , Circuit Judges.
PER CURIAM:
Mark Whitehead appeals his conviction for possession of a
firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(l).
Mr. Whitehead challenges the district court’s denial of both his mo-
tion to withdraw his guilty plea and his motion to suppress evi-
dence. After review of the parties’ briefs and the record, we affirm.
I
A1
On April 17, 2018, United States Marshals deputies executed
a Michigan arrest warrant for Mr. Whitehead at his residence in
Bessemer, Alabama. Following the arrest, the deputies conducted
a safety sweep of Mr. Whitehead’s residence and discovered a 12-
gauge shotgun in the closet of his bedroom. The deputies then read
Mr. Whitehead his
Miranda rights,
see Miranda v. Arizona, 384
U.S. 436 (1966), and he admitted the shotgun was his.
Prior to this arrest, Mr. Whitehead had been convicted of
several felonies. In both 1996 and 2006, he was convicted of assault
with a dangerous weapon. In 2007, he was again convicted of as-
sault with a dangerous weapon as well as two counts of assault-
ing/resisting/obstructing a police officer.
1 Because Mr. Whitehead pled guilty, the facts set out are those agreed upon
and contained in the plea agreement.
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21-10562 Opinion of the Court 3
Mr. Whitehead knew of these felony convictions at the time
that the United States Marshals deputies found the shotgun in his
possession.
B
In February of 2019, a grand jury returned a superseding in-
dictment, charging Mr. Whitehead with knowingly being a felon
in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). In
August of 2019, Mr. Whitehead entered into a plea agreement with
the government and pled guilty.
The plea agreement advised Mr. Whitehead of the punish-
ments he could face, including the possibility that he would be sub-
ject to a mandatory minimum of 15 years’ imprisonment if he was
found to be an armed career criminal under the Armed Career
Criminal Act. The plea agreement also contained an appeal waiver
under which Mr. Whitehead waived his right to appeal his convic-
tion and sentence, subject to certain limited exceptions.2
The plea agreement further stated that “before giving up [his
appellate] rights, [Mr. Whitehead] discussed the . . . Sentencing
Guidelines and their application to [his] case with [his] attorney,
who explained them to [his] satisfaction.” In conjunction with the
plea agreement, Mr. Whitehead completed a guilty plea advice of
rights certification. Mr. Whitehead certified that he understood
2 Mr. Whitehead reserved only his right to appeal a sentence imposed in excess
of a statutory maximum, a sentence imposed in excess of the guidelines range,
and claims of ineffective assistance of counsel.
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4 Opinion of the Court 21-10562
that “[i]f a mandatory statutory minimum sentence [was] applica-
ble, the judge [could not] sentence [him] below the minimum sen-
tence.”
The district court held a change of plea hearing. At the out-
set of the hearing, Mr. Whitehead’s attorney advised the court that
he needed to speak with his client, who had a question about the
difference between accepting the plea agreement and pleading
straight up to his single charge. The court permitted Mr. White-
head to speak with his attorney. Mr. Whitehead then advised the
court that he did not have any further questions for his attorney,
and the court proceeded with the hearing.
The district court engaged in a colloquy with Mr. White-
head while he was under oath. Mr. Whitehead confirmed that he
had reviewed the plea agreement and discussed its terms with his
counsel who answered all his questions to his satisfaction. The
court advised Mr. Whitehead that he would be subject to a manda-
tory minimum of 15 years’ imprisonment under the ACCA if he
had been previously convicted of three violent offenses or serious
drug offenses. Mr. Whitehead responded that he understood both
the statutory maximum penalties and the ACCA enhancement.
The court also advised Mr. Whitehead that it would not have dis-
cretion over whether to impose the statutory maximum if the
ACCA applied. Again, Mr. Whitehead acknowledged that he un-
derstood.
Following this colloquy, Mr. Whitehead pled guilty to count
one of the superseding indictment as charged.
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21-10562 Opinion of the Court 5
C
Prior to sentencing, a probation officer prepared a presen-
tence investigation report stating that Mr. Whitehead qualified for
a 15-year mandatory minimum under ACCA because he had three
prior convictions for violent offenses. The probation officer calcu-
lated a total offense level of 30, which included a total three-level
reduction for his acceptance of responsibility, and criminal history
category of IV, resulting in an advisory guidelines imprisonment
range of 135 to 168 months. Because the mandatory minimum sen-
tence under the ACCA was greater than that range, however, his
guidelines term of imprisonment became 180 months.
D
In October of 2020, more than 14 months after entering his
plea of guilty and more than 9 months after release of the PSI, Mr.
Whitehead filed a motion to withdraw his plea. He argued that the
plea agreement lacked consideration and was, therefore, not made
“intentionally, knowingly, and/or voluntarily.” He further as-
serted that he had not entered into the plea knowingly and volun-
tarily because he did not understand that he would face a manda-
tory minimum sentence of 15 years’ imprisonment if he was found
to be an armed career criminal.
The government responded, arguing that Mr. Whitehead
had not established that it would be fair and just for him to with-
draw his guilty plea. It maintained that Mr. Whitehead had re-
ceived consideration because his guidelines range calculation
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6 Opinion of the Court 21-10562
would have been higher if he had entered a straight up guilty plea
rather than pled through the plea agreement. The government fur-
ther argued that Mr. Whitehead received close assistance of coun-
sel throughout the proceedings, and that he entered the guilty plea
knowingly and voluntarily as evidenced by his exchange with the
court during the plea colloquy.
Following a hearing—during which Mr. Whitehead did not
introduce any evidence—the district court denied Mr. Whitehead’s
motion. The district court noted Mr. Whitehead’s statements dur-
ing the change of plea that his counsel was effective and found that,
based on the actions of defense counsel throughout the proceed-
ings, Mr. Whitehead received close assistance of counsel. The court
stated that Mr. Whitehead’s answers during the plea colloquy
showed he entered into the plea knowingly and voluntarily. The
court noted that both the plea agreement and colloquy made clear
that, if the ACCA applied, Mr. Whitehead would be subject to the
mandatory minimum and the court would have no discretion to
go below it. The court also noted that judicial resources would not
be conserved and that the government would be prejudiced if Mr.
Whitehead withdrew his plea.
The district court later sentenced Mr. Whitehead to 180
months’ imprisonment, based on the applicability of the ACCA,
followed by two years’ supervised release.
This appeal follows.
II
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21-10562 Opinion of the Court 7
Mr. Whitehead argues the district court abused its discretion
in denying his motion to withdraw his guilty plea because he re-
ceived no consideration for his guilty plea. He further argues that
his plea was not knowing and voluntary and that he did not receive
close assistance of counsel. He also contends that the district court
erred in denying his motion to suppress evidence.
The government responds that the district court did not err
in denying Mr. Whitehead’s motion to withdraw his guilty plea be-
cause he had close assistance of counsel and his plea was made
knowingly and voluntarily. It argues that the length and substance
of the plea colloquy demonstrate that the plea was knowing and
voluntary, and that Mr. Whitehead was aware of the potential con-
sequences of his plea. The government further contends that Mr.
Whitehead’s challenge to the denial of his motion to suppress is
barred by both his guilty plea and the appeal waiver contained
within his plea agreement.
A
We review the district court’s decision to deny a defendant’s
motion to withdraw a guilty plea for abuse of discretion.
See
United States v. McCarty, 99 F.3d 383, 385 (11th Cir. 1996). “The
denial of a motion to withdraw a guilty plea is not an abuse of dis-
cretion unless the denial was arbitrary or unreasonable.”
United
States v. Izquierdo, 448 F.3d 1269, 1276 (11th Cir. 2006) (internal
quotation marks omitted). The defendant carries the burden of
showing a fair and just reason for withdrawing his plea.
See id.
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8 Opinion of the Court 21-10562
In determining whether the defendant has met his burden
for withdrawing his guilty plea, a district court may consider the
totality of the circumstances surrounding the plea, including the
following factors: “(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 al-
lowed to withdraw his plea.”
United States v. Buckles, 843 F.2d
469, 472 (11th Cir. 1988) (internal citation omitted). We have stated
that, if a defendant does not satisfy the first two
Buckles factors, it
is not necessary to thoroughly analyze the remaining two factors.
See United States v. Gonzalez-Mercado, 808 F.2d 796, 801 (11th
Cir. 1987). We also consider the timing of the filing of the motion
to withdraw.
See United States v. Rogers, 848 F.2d 166, 168 (11th
Cir. 1988). “The longer the delay between the entry of the plea and
the motion to withdraw it, the more substantial the reasons must
be as to why the defendant seeks withdrawal.”
Buckles, 843 F. 2d
at 473.
“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). Consequently, a defendant “bears a
heavy burden to show his statements [under oath] were false.”
Rogers, 848 F.2d at 168.
Here, Mr. Whitehead failed to show that the district court
abused its discretion in denying his motion to withdraw his guilty
plea. The record demonstrates that Mr. Whitehead had close
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21-10562 Opinion of the Court 9
assistance of counsel. Indeed, Mr. Whitehead repeatedly acknowl-
edged under oath that his attorney had discussed the plea agree-
ment and its consequences with him. He also stated that he was
satisfied with his attorney’s advice and representation.
The record also shows that Mr. Whitehead entered into the
plea knowingly and voluntarily. First, he stated that he had not
been promised anything in exchange for and was not threatened
into entering a guilty plea. Second, he confirmed that he under-
stood the charges against him and that, at trial, the government
would have had to prove those charges. Third, he specifically
acknowledged during the plea colloquy that he understood the po-
tential sentencing consequences of his plea. He confirmed he knew
that if he qualified as an armed career criminal, the district court
would be required to sentence him to at least 15 years’ imprison-
ment.
Mr. Whitehead argues that there was no consideration for
his acceptance of the plea agreement, which negated the knowing
and voluntary nature of his plea. He did, however, receive consid-
eration for his guilty plea. The government agreed to recommend
a sentence at the low-to-middle end of the advisory guidelines
range. The mandatory minimum under the ACCA was just that—
a minimum. The court had discretion to sentence Mr. Whitehead
to more than that minimum—up to life—and could have done so
through an upward variance. As such, the fact that Mr. Whitehead
chose to plead guilty under these circumstances does not negate
the knowing and voluntary nature of his plea.
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10 Opinion of the Court 21-10562
Although we need not give them particular weight, the final
two
Buckles factors also weigh in favor of affirmance. Requiring
the government to put on a trial over one year after it met its bur-
den through Mr. Whitehead’s admissions in the plea agreement
would prejudice the government and would not conserve judicial
resources. Finally, the 14-month time period between Mr. White-
head’s guilty plea and the filing of his motion to withdraw the plea
requires that he provide substantial reasons for the withdrawal,
which he failed to do.
In sum, Mr. Whitehead failed to satisfy his heavy burden of
proving that his sworn statements during the plea colloquy were
false. He did not introduce any evidence whatsoever, let alone ev-
idence that would support a finding that his statements during the
colloquy were false. Accordingly, Mr. Whitehead failed to show a
fair and just reason for the withdrawal of his guilty plea, and we
affirm as to this issue.
B
A defendant’s knowing, voluntary, and unconditional guilty
plea waives all non-jurisdictional defects in the proceedings.
See
United States v. Yunis, 723 F.2d 795, 796 (11th Cir. 1984). Thus, “[a]
defendant who wishes to preserve appellate review of a non-juris-
dictional defect while at the same time pleading guilty can do so
only by entering a conditional plea in accordance with Fed. R.
Crim. P. 11(a)(2).”
United States v. Pierre, 120 F.3d 1153, 1155 (11th
Cir. 1997) (internal quotation marks omitted). A district court’s re-
fusal to suppress evidence is a non-jurisdictional issue and is waived
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21-10562 Opinion of the Court 11
by entering an unconditional plea.
See United States v. Charles, 757
F.3d 1222, 1227 n.4 (11th Cir. 2014);
United States v. McCoy,
477 F.2d 550, 551 (5th Cir. 1973).
Because the district court’s refusal to suppress evidence is a
non-jurisdictional issue, Mr. Whitehead waived appellate review of
this decision by entering a knowing, voluntary, and unconditional
guilty plea. Given that his challenge is waived by the plea itself, we
need not reach the issue of the enforceability of the appeal waiver.
III
Mr. Whitehead failed to demonstrate that the district court
abused its discretion in denying his motion to withdraw his guilty
plea, and his challenge to the denial of the motion to suppress is
waived by entry of the guilty plea. We therefore affirm.
AFFIRMED.
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