United States District Court, M.D. Florida, Orlando Division
G. BYRON, UNITED STATES'DISTRICT JUDGE.
cause is before the Court on Defendant ANDRES CABEZAS'
Motion to Withdraw Guilty Plea. The Court has reviewed the
Defendant's motion, the transcript of the change of plea
colloquy, and the file. The Court does not require a response
by the United States Attorney's Office, and having
considered the affidavits and memorandum submitted by counsel
does not require an evidentiary hearing in this matter. The
Court finds that Defendant CABEZAS knowingly, voluntarily,
and without threats or coercion plead guilty to Counts One of
the Superseding Information and, at all times material
hereto, acted with and upon the advice of counsel. For the
reasons set forth in greater detail below, the
Defendant's Motion to Withdraw Guilty Plea is DENIED.
Cabezas was arrested on May 31, 2017, pursuant to a Criminal
Complaint. (Doc. 1). The Office of the Federal Defender was
appointed to represent the Defendant that same day. (Doc. 4).
On June 21, 2017, the Defendant's private counsel filed a
notice of appearance. (Doc. 15). On June 28, 2017, a federal
grand jury sitting in Orlando, Florida, returned an
Indictment charging the Defendant with enticing a minor to
engage in sexual activity. (Doc. 16).
case was thereafter scheduled for the September 5, 2017 trial
term. (Doc. 24). On Defendant's motion, the trial was
continued to the October 2017 trial term, and the deadline to
disclose expert witnesses was extended. (Docs. 38, 39). The
case was subsequently set for a date-certain trial commencing
on November 7, 2017. (Doc. 50).
the course of this litigation, the Defendant filed a Motion
to Compel Brady Material (Doc. 40), Motion to Suppress Post
Arrest Statements (Doc. 41), and a Motion to Suppress
Evidence. (Doc. 42). On October 16, 2017, the Defendant
withdrew these motions. (Doc. 64). On October 18, 2017, the
Government filed a Superseding Information, charging the
Defendant with receipt of child pornography, in violation of
18 U.S.C. § 2252A(a)(2). This offense provides for a
mandatory minimum sentence of 5 years imprisonment and a
maximum sentence of 20 years. Id. The original
offense charged in the Indictment, carries a mandatory
minimum of 10 years imprisonment and a maximum sentence of
life imprisonment. 18 U.S.C. § 2422(b). The Defendant
waived indictment and pleaded guilty to the Superseding
Indictment on October 18, 2017. (Docs. 66-67). There being no
objection to the Magistrate Judge's Report and
Recommendation, this Court accepted the Defendant's
guilty plea and adjudicated him guilty on October 20, 2017.
(Doc. 77). The Defendant, now represented by newly retained
counsel, seeks to set aside his plea of guilty.
Standard of Review
Rule of Criminal Procedure 11(d)(2)(B) provides that a
Defendant may withdraw a plea of guilty after the Court
accepts the plea, but before it imposes sentence, if the
Defendant can show a fair and just reason for requesting the
withdrawal. In determining if the defendant has met his
burden for withdrawal, “a district court may consider
the totality of the circumstances surrounding the plea,
” including the following:
(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.
United States v. Brehm, 442 F.3d 1291, 1298 (11th
Cir. 2006). “There is no absolute right to withdraw a
guilty plea.” United States v. Medlock, 12
F.3d 185, 187 (11th Cir. 1994). Rather, the “good
faith, credibility and weight of a defendant's assertions
in support of a motion [to withdraw] are issues for the trial
court to decide.” United States v. Buckles,
843 F.2d 469, 472 (11th Cir. 1988). Moreover, there is a
“strong presumption that statements made during the
[plea] colloquy are true.” Medlock, 12 F.3d at
187. Accordingly, the defendant “bears a heavy burden
to show his statements [under oath] were false.”
United States v. Rogers, 848 F.2d 166, 168
(11th Cir. 1988).
guilty plea may not be knowing and voluntary if the accused
does not understand the nature of the constitutional
protections he is waiving or has such an incomplete
understanding of the charges that his plea cannot be
construed as an intelligent admission of guilt. Gaddy v.
Linahan, 780 F.2d 935, 943 (11th Cir. 1986).
Additionally, a guilty plea may not be knowing and voluntary,
if the accused does not receive “reasonably effective
assistance of counsel in connection with the decision to
plead guilty.” McCoy v. Wainwright, 804 F.2d
1196, 1198 (11th Cir. 1986). The accused must show that his
counsel's performance fell below the threshold level of
competence, and he must show that but for counsel's
errors, he would not have pleaded guilty and would have
insisted on going to trial. Strickland v.
Washington, 466 U.S. 668 (1984); Hill v.
Lockhart, 474 U.S. 52, 58 (1985).
The Defendant's Contentions
Defendant contends that he “steadfastly maintained his
innocence and repeatedly asserted that he did not want a plea
agreement.” (Doc. 90, p. 2). The defense proffers that
on October 3, 2017, the government made an offer which
allowed the Defendant to plead guilty receipt of child
pornography. (Id. at pp. 2-3). When faced with this
less serious violation of federal law, Defendant Cabezas
avers that he “repeatedly told his family that he was
innocent and wished to take his case to trial.”
(Id.). The Defendant argues that he signed the Plea
Agreement only after his family had “placed extensive
pressure on him to sign the plea agreement.”
(Id. at p. 4). Finally, Defendant Cabezas argues
that he was presented with the written Plea Agreement on
October 15, 2017-just 3 days before the change of plea
hearing-and did not read the entire agreement or receive
“explanation as to the ramifications of the items
included in the document.” (Id. at pp. 4-5).
For these reasons, the Defendant submits that his plea was
neither knowing nor voluntary.