FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                     PUBLISH                      June 17, 2013
                                                              Elisabeth A. Shumaker
                   UNITED STATES COURT OF APPEALS                 Clerk of Court

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
 v.                                               Nos. 11-3366 & 11-3374
 FABIAN DUNBAR,

             Defendant - Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF KANSAS
       (D.C. NOS. 2:10-CR-20076-KHV-13 and 2:05-CR-20113-KHV-1)


Jill M. Wichlens, Assistant Federal Public Defender, (Raymond P. Moore, Federal
Public Defender, Veronica S. Rossman and O. Dean Sanderford, Assistant Federal
Public Defenders, with her on the brief), Denver, Colorado, for Defendant -
Appellant.

James A. Brown, Assistant United States Attorney, (Barry R. Grissom, United
States Attorney, with him on the brief), Topeka, Kansas, for Plaintiff - Appellee.


Before HARTZ, BALDOCK, and GORSUCH, Circuit Judges.


HARTZ, Circuit Judge.


      Defendant Fabian Dunbar pleaded guilty in the United States District Court

for the District of Kansas to distributing cocaine. The plea was conditioned on
the district court’s imposing a sentence of 48 months’ imprisonment, as set forth

in a plea agreement between Defendant and the government under Fed. R. Crim.

P. 11(c)(1)(C). The agreement also stated that the parties would recommend a

consecutive sentence of 12 months’ imprisonment for Defendant’s violating his

supervised release from a 2006 sentence. The agreement did not include a waiver

of Defendant’s right to appeal.

      The district court set the same time for hearings to sentence Defendant on

the drug-distribution charge and to consider the petition charging him with

violations of his supervised release. The court announced that it would begin

with sentencing on the drug charge. But when it asked whether defense counsel

had any objections to the presentence report (PSR), defense counsel responded

that Defendant was dissatisfied with his performance and wanted new counsel.

During the ensuing discussion of whether to replace defense counsel, Defendant

submitted a pro se pleading that complained of counsel’s performance in

connection with his guilty plea and asserted that Defendant had “mental

disabilities.” R., Vol. 1 at 75. After further discussion the court ruled that

counsel should continue representing Defendant and sentenced Defendant to 48

months’ imprisonment on the drug charge.

      Next the court turned to the charges that Defendant had violated the terms

of supervised release. It found that Defendant had committed the violations, but

it declined to accept the parties’ recommendation of a 12-month sentence and

                                         -2-
proposed three years. Defendant protested that his counsel had assured him that

the recommended 12-month sentence was binding on the court, and asserted that

he would have gone to trial on the drug-distribution charge if he had known that

he could receive a sentence of more than 12 months’ imprisonment for violating

his supervised release. Defense counsel denied telling Defendant that the

recommendation was binding, and the court sentenced Defendant to 36 months’

imprisonment, to run consecutively to his 48-month sentence.

      Defendant appeals both his distribution conviction and the revocation of

supervised release. He raises four challenges: (1) that the district court

conducted an inadequate inquiry into his request for new counsel and abused its

discretion in denying his request; (2) that the district court abused its discretion in

failing to construe his pro se pleading and various oral protests as motions to

withdraw his plea; (3) that his plea was not knowing and voluntary because his

counsel had given him inaccurate information; and (4) that his sentence on

revocation of supervised release was procedurally and substantively unreasonable.

      Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. First, the

district court conducted an adequate inquiry into Defendant’s request for new

counsel, and did not abuse its discretion in denying the request because defense

counsel’s explanation could persuade a reasonable jurist that counsel’s

performance had been satisfactory and that any failures of communication had

been Defendant’s fault. Second, the court did not err in declining to treat

                                          -3-
Defendant’s pro se pleading and oral statements as motions to withdraw his plea

because Defendant was represented by counsel who did not make a timely motion

to permit withdrawal of the plea and Defendant’s statements in any event were

unclear or untimely. Third, Defendant did not raise in district court a challenge to

the validity of his plea, and there is no plain error because the pertinent facts are

not established in the record. And fourth, as to Defendant’s sentence on violation

of the terms of supervised release, he has failed to show plain error with respect

to the procedural reasonableness of his sentence and his sentence was not

substantively unreasonable.

I.    BACKGROUND

      A.     Proceedings Before Plea to 2011 Drug Charge

      In August 2006 Defendant pleaded guilty to the offense of possession of

five grams or more of cocaine base with intent to distribute (the 2006

Conviction). See 21 U.S.C. § 841(a)(1). He was eventually sentenced to 60

months’ imprisonment, to be followed by a term of four years’ supervised release.

In November 2009 Defendant was transferred from a prison to a halfway house to

complete his sentence. He was released from the halfway house and placed on

supervised release in May 2010.

      That December Defendant was indicted for being a felon in possession of a

firearm. The government also filed a petition to revoke his supervised release,




                                          -4-
alleging his firearm offense, failure to report in person to the probation office,

and failure to inform the probation office that he had left his job.

      In a separate indictment filed the next month, Defendant was charged with

conspiring between January 2009 and May 2010 to manufacture and distribute 50

grams or more of cocaine base. See 

Defendant had a prior felony drug conviction, he faced a statutory

mandatory-minimum sentence of 10 years’ imprisonment and a maximum

sentence of life imprisonment. See 

district court held separate trials on the gun-possession and drug-

conspiracy charges. A jury acquitted Defendant of the gun-possession charge. At

the conspiracy trial the jury deadlocked, and the judge declared a mistrial.

      B.     Plea Agreement

      Defendant then engaged in plea negotiations with the government. To

encourage a guilty plea, the government stated that before any retrial it would file

a superseding indictment charging Defendant with a drug offense that would carry

a mandatory minimum sentence of 20 years’ imprisonment. The parties reached

an agreement, and on September 19, 2011, the government filed a superseding

information accusing Defendant of distributing and possessing with intent to

distribute an unspecified amount of cocaine base (carrying no mandatory

minimum sentence, see 

Defendant filed a petition to enter

a guilty plea to the information. Under the agreement the government would

                                         -5-
dismiss the conspiracy count in the indictment. Further, the parties agreed to a

48-month sentence under Fed. R. Crim. P. 11(c)(1)(C), recognizing that

Defendant could withdraw his guilty plea if the district court did not agree to the

stipulated sentence. See Fed. R. Crim. P. 11(c)(5), (d)(2)(A). They also agreed to

recommend a sentence of 12 months’ imprisonment for Defendant’s violation of

his supervised release from his 2006 Conviction. 1

      After conducting a plea colloquy the district court found that Defendant

was competent to enter the plea, had entered the plea knowingly and voluntarily,

and was guilty of the offense.


      1
          This portion of the agreement in Case Number 10-20076-13-KHV stated:

      3. Proposed (c)(1)(C) Sentence. The parties propose, as an
      appropriate disposition of this case, a sentence of 48 months
      imprisonment on Count 1; 6 years of supervised release; no fine; and,
      the mandatory special assessment of $100 to be paid during the
      defendant’s incarceration. This [sic] parties agree to jointly
      recommend that this sentence will run consecutively to a 12 month
      term of imprisonment in Case Number 05-20113-01-KHV [the 2006
      Conviction], for which the defendant faces revocation of supervised
      release. The parties seek this binding plea agreement as an
      appropriate disposition of the case because it brings certainty to the
      sentencing process and assures that the defendant and the
      government will benefit from the bargain they have struck if the
      Court permits itself to be bound by the proposed sentence; the
      interests of justice are served by the sentence, thereby assuring that
      the sentence is consistent with the sentencing factors of 18 U.S.C.
      § 3553(a); and if the Court does not agree with the sentence, the
      parties may be restored to the positions they maintained prior to
      reaching this plea agreement. . . .

R., Vol. 1 at 62–63 (emphasis added).

                                         -6-
      C.     The Sentencing Hearing

      The district court (although not the judge who had accepted the plea) set

the same time for sentencing on the 2011 drug charge and the hearing on the

petition to revoke Defendant’s supervised release. Soon after the court

announced that it would start with the sentencing, defense counsel stated that

Defendant was dissatisfied with his representation and wanted new counsel

appointed for him. He said that Defendant was “not listening at all,” R., Vol. 2,

pt. 5 at 808, and explained:

      [W]hen I come up to go over the original presentence investigation
      with him, I came up to meet with him, I had forgotten the actual
      physical document. I told him what was contained in it, I told him
      what the numbers were. As the Court can see from the presentence
      report, we didn’t actually participate in it because of the 11(c)(1)(C)
      filing. I told him what the numbers were. Mr. Dunbar then
      immediately just left the interview room and would no longer talk.
             I sent him a copy of the report. I also came back up to go over
      that with him and also after we had gotten the notice that we were
      doing the revocation, to go over the provision relative to the
      revocation, the standards on the revocation, and the general process
      of how that would work. At which point in time he wouldn’t listen
      to anything and said, I’m just not listening anymore. I want to be
      done. I want to object to the PSR. I said what do you want to object
      to?
             He was upset that the amounts—in this particular case, the
      numbers are essentially irrelevant, as I went over that with him,
      because of the 11(c)(1)(C). And he said, no, they still place me with
      too much amounts. And I tried to explain to him with different
      amounts it won’t actually impact the numbers.
             But he doesn’t want to listen anymore, he doesn’t believe I am
      advocating for him, and would like new counsel appointed. And,
      again, we just aren’t communicating at all. Apparently, as
      Mr. Dunbar comes in today, he would still like new counsel.


                                        -7-


court asked Defendant why he was worried about the drug

amounts in the PSR when they would make no difference to his sentence if it

accepted the plea agreement. But Defendant was not responsive. He said:

            My point—like he come up—my objection to the PSI [sic] was
      [due] November 5th—November 7th. He come up [to the prison] on
      the 15th. And then he go—then he talk about he forgot [to bring the
      PSR] and he come up on Friday right before we go to court trying to
      go over it.
            Somebody else had to go over it with me. He didn’t never
      go—the PSI—he ain’t never told me about the sentence and how it
      went to or nothing. . . .

also argued that his counsel should have objected to

other matters in the PSR. After his counsel said that Defendant was referring to

paragraphs 52 and 53 of the PSR, the court questioned Defendant about what was

erroneous in those paragraphs. Although Defendant raised one complaint, the

PSR conformed to what he asserted and ultimately he responded only, “I don’t

know.” 

also expressed confusion about the guidelines recommended

sentence for violating his supervised release:

      At this point he and I don’t see eye-to-eye since he been my attorney.
      And he know and I know, and he’ll tell you that. Now today it’s
      something different now he talking about like on a plea it was a year
      revoked, now it’s something else, 15 months, 21 months, now it just
      changed all of a sudden. But in the Plea Agreement, it just say one
      year [for the sentence for the supervised-release violation].

counsel explained that earlier that day he had told Defendant

that although the parties would recommend a 12-month sentence on revocation,

                                        -8-
the guidelines range was actually 15 to 21 months. But the prosecutor corrected

him, stating that the true range was 8 to 14 months. The court confirmed that the

recommended sentence fell within the guidelines range, and asked defense

counsel and the prosecutor whether the recommended sentence was binding. Both

said it was not, and defense counsel added, “And that’s what I explained to

Mr. Dunbar as well.” 

court then asked Defendant, “So what’s the

problem?” 

ain’t got nothing to say.” 

Defendant handed the court a hand-written pro se pleading

titled, “Judicial Notice of Adjudicative Facts and Preserving of All Appealable

Issues” (the Pro Se Pleading), which listed grievances with his counsel, 

75; it said:

       Comes now defendant, Fabian Dunbar setting forth the above entitled
       Judicial Notice and submitting the following facts, to wit:

                                      FACTS

       1. Defendant has in fact been mis-informed (by his attorney) to enter
       into a guilty plea;

       2. Defense counsel failed to communicate adequately and properly
       investigate defense facts;

       3. Defense counsel failed to suppress evidence and/or request
       dismissal of the case (herein) with prejudice because said case is
       fundamentally unfair due to being founded upon hearsay and other
       excludable evidence;

       4. Defense counsel knowingly acted to instill fear into defendant to
       induce a guilty plea;


                                        -9-
      5. Defendant preserves and invokes all rights hereby that he is a
      disabled person with mental disabilities, that were not evaluated.

summarized the pleading, Defendant explained: “I just said

I’m talking about my appeal rights. . . . He told me I have my appeal rights even

though I took a plea in this case.” 

5 at 820. The court responded,

“I’m sorry, did you say appeal rights?” 

answered yes,

the court said, “Okay. So we will docket this as a Notice of Appeal.” 

the court asked Defendant whether he suffered from

mental disabilities, as he had stated in his Pro Se Pleading, and whether he was

“competent to go forward with sentencing.” 

he suffered

from mental disabilities and could not “really read,” 

not know if he

was competent to proceed. The court then turned to defense counsel, who

described Defendant as mentally competent:

      [T]hroughout the course of these proceedings, [Defendant] is
      accurate in the fact that at times our relationship has been somewhat
      confrontational. But I would also say that in that confrontation he is
      extremely adroit at moderately complex legal concepts. In fact, prior
      to the last trial, we had extended discussions relative to the nature
      and element of what a conspiracy is and the aspects of that
      conspiracy relative to the weights and measures attributable to an
      individual.
             I think [Defendant] is quite adept in those concepts and, again,
      I think he’s been quite intelligent, frankly. I think—he’s very street
      savvy. He does not read well and I acknowledge that. And we’ve
      tried to do some other things, but I think he’s extremely bright,
      actually, and certainly has the capability of understanding what is
      going on, I think, to a great degree.

added).

                                        -10-
      The court asked Defendant whether he agreed with his counsel’s

assessment. In the exchange that followed, Defendant said: “I only got a

learning disability. . . . Reading and paying attention—like—it’s like reading and

it’s like learn or not. I can’t really focus that much, you know, I had a hard

time.” 

mother, who was in the courtroom, added that

Defendant had suffered from mental disabilities as a child:

      He had a learning disability and it was also diagnosed at one a point
      [sic] his motor skills were deteriorating, so—but he’s always had
      problems in school with reading and, you know, comprehending. He
      just, you know, just really can’t do—and one time he had
      psychologist we had that came to the house. We had different people
      in and out of his life, you know, we even had someone come out to
      the house.

court concluded that it would not replace defense counsel because

Defendant had not “shown good reason to substitute” his attorney so late in the

proceedings. 

court turned to the merits of the plea agreement, hearing from counsel

and offering Defendant an opportunity to speak. It accepted the plea agreement

and sentenced Defendant to 48 months’ imprisonment and six years’ supervised

release on the 2011 charge.

      Next the court considered the charge that Defendant had violated the terms

of his supervised release from his 2006 Conviction. Defense counsel stipulated

that Defendant had violated his supervised release by committing the crime

charged in the 2011 information (which actually occurred before the

                                        -11-
commencement of his supervised release) and by failing to report to probation

officers. And the court found that he had committed the firearm offense of which

he had been acquitted.

      The court informed the parties that it intended to reject the parties’

recommended sentence of 12 months’ imprisonment and instead impose a

sentence of 36 months, which was the statutory maximum because his conviction

had been for a Class B felony. See 18 U.S.C. § 3583(e)(3). When the district

court asked Defendant if he wanted to say anything, he claimed that he had agreed

to at most a one-year sentence for violating his supervised release:

      The Defendant: I mean, my whole thing was they told me 48 months
      with a year. And I didn’t know nothing about no three. No three
      years on top of it. I’m really confused.

      The Court: Okay. Well, the 12 months that you’re talking about was
      not binding on the Court.

      The Defendant: I mean, if I would have knew that, I might as well
      just go to my life in here. I might as well have went to trial. That’s
      how I would have felt.

R., Vol. 2, pt. 5 at 850.

      The court questioned Defendant further, but he continued to insist that he

“would have just went to trial” if he had known that the 12-month sentence was

not binding. 

then asked defense counsel again whether he had

explained to Defendant that the 12-month sentence for violating his supervised




                                        -12-
release, although recommended by the parties, was not binding on the court.

Defense counsel asserted that he had properly informed Defendant:

      I did, Your Honor, and I will state specifically also that I told him I
      thought that was a good likelihood the Court would go along with
      that because that’s what Mr. Carvin got in the companion case
      relative to the first one. I did tell him I thought that was a good
      chance, but I did not tell him I thought that was mandatory.

however, continued to assert that he had been misled and would

not have pleaded guilty if he had understood the plea agreement. The court told

him that “[i]f your guilty plea was not a knowing plea and a voluntarily [sic] plea,

then you should file a motion to vacate it and then the Court will decide whether

to vacate it or not,” 

it advised him that “you need to talk with your

attorney about this,” 

“[i]t’s not necessarily in your best

interests to get the plea vacated because you got a very favorable agreement here

with the government,” 

that he was innocent, claiming, “I never messed

up on supervised release—I reported, monthly report, I did all of that with no

problem and no dirties or nothing. . . . I wasn’t selling no drugs. I just plead to

it.” 

district court told Defendant that he should talk to his lawyer

before “continu[ing] along these lines” because he was likely violating the plea

agreement, 

sentenced him to three years’ imprisonment. After

sentence was pronounced, Defendant said: “I can’t understand. I might as well

                                         -13-
just take my plea back.” 

court responded: “You don’t have the

right to take your plea back.” 

grounds for reversal: (1) that the district court

conducted an inadequate inquiry into his request for new counsel and abused its

discretion in denying his request; (2) that the district court abused its discretion in

failing to construe the Pro Se Pleading and various oral statements as motions to

withdraw his plea; (3) that his plea was not knowing and voluntary because he

thought that the 12-month recommendation was binding on the court, and his

counsel misinformed him of his sentencing exposure if the government filed a

superseding indictment; and (4) his sentence on revocation of supervised release

was procedurally and substantively unreasonable. We address each argument in

turn.

II.     DISCUSSION

        A.    Denial of Motion to Substitute Counsel

        “To warrant a substitution of counsel, the defendant must show good cause,

such as a conflict of interest, a complete breakdown of communication or an

irreconcilable conflict which leads to an apparently unjust verdict.” United States

v. Lott, 

, 1249 (10th Cir. 2002) (internal quotation marks omitted).

“[M]ere strategic disagreement between a defendant and his attorney” is not

enough to show good cause; “rather, there must be a total breakdown in

communications.” 

a motion to substitute counsel, “[t]he

                                         -14-
district court is under a duty to make formal inquiry into the defendant’s reasons

for dissatisfaction with present counsel.” United States v. Anderson, 

, 1210 (10th Cir. 1999) (internal quotation marks omitted). We review for

abuse of discretion. See United States v. Hutchinson, 

, 1024 (10th

Cir. 2009). “It is only when the district court’s decision is legally erroneous, or

when the facts are so lopsided against the option the district court has chosen

(even when abiding the rule a district court’s factual findings may be reversed

only when clearly erroneous), that we reverse.” 

the timing of

the motion, (2) the adequacy of the trial court’s inquiry into the reasons for the

motion, (3) “whether the defendant-attorney conflict was so great that it led to a

total lack of communication precluding an adequate defense,” and (4) “whether

the defendant substantially and unreasonably contributed to the communication

breakdown.” 

. In the absence of specific findings by the

court, we construe the evidence in the light most favorable to the court’s ruling.

See United States v. Jenkins, 

, 1212 (10th Cir. 1999).

      Defendant argues that he demonstrated good cause for substitution of

counsel because: (1) he lost faith in his counsel; (2) there was no meaningful

communication between Defendant and his counsel; and (3) Defendant had

legitimate reasons for losing faith in his counsel because counsel (a) had failed to

object to the drug amounts and criminal-history score in the PSR, (b) did not meet

with Defendant about the PSR until after the objections were due, (c) did not

                                        -15-
inform Defendant of the possible length of his sentence on revocation, (d)

described Defendant as “extremely bright,” R., Vol. 2, pt. 5 at 822, even though

he was “functionally illiterate and mentally disabled,” Aplt. Br. at 54, and (e)

stipulated to Defendant’s violation of his supervised release even though

Defendant claimed he was innocent. And he contends that the district court

conducted an inadequate inquiry into his request for substitution of counsel

because it (1) denied the motion without fully understanding the basis of

Defendant’s complaints, (2) focused on Defendant’s objections to the PSR rather

than his problems with counsel, and (3) put the burden entirely on Defendant to

explain why substitution was appropriate even though his ability to express

himself was hampered by his mental retardation.

      We are not persuaded. We begin with the claims of deficient

representation. The district court could properly find that defense counsel’s

performance had been satisfactory. Defendant has not explained what purpose

would have been served by his counsel’s challenging anything in the PSR; his

stipulated sentence was not based on the PSR, and, as the court noted, had it

rejected the plea agreement, Defendant would have gone back to square one and

have had the opportunity to challenge the PSR if later found guilty. Likewise,

there was no reason for counsel to meet with Defendant about the PSR before the

sentencing hearing. Also, if the court believed the representations of counsel, as

it could reasonably do, then Defendant had been told that he was not guaranteed a

                                        -16-
one-year sentence on revocation, and was competent to understand the plea

agreement. As to the assertion that counsel had improperly stipulated to

violations of his supervised release, the stipulation occurred after the court had

denied the motion to replace counsel, so it is irrelevant to our review of the

denial. But in any event, Defendant voiced no objection at the time of the

stipulation, he had already admitted to his drug-distribution offense, and he did

not assert his innocence until he was informed of his sentence on revocation. The

court consequently had no reason to believe that counsel’s stipulation had been

contrary to Defendant’s wishes. Thus, the record supports a determination that

Defendant had no justification for losing faith in his attorney. And the court

could reasonably credit counsel’s comments to the effect that Defendant was the

one solely responsible for any failure of communication. See 

(court must examine “whether the defendant substantially and unreasonably

contributed to the communication breakdown”).

      We likewise see no merit to Defendant’s argument that the district court’s

inquiry was inadequate. The court afforded defense counsel and Defendant ample

opportunity to explain Defendant’s grievances. That Defendant was unpersuasive

was not because he was denied the chance to express himself. There is no reason

to believe that the court did not understand Defendant’s complaints or ignored

any of them. As to Defendant’s contention that because of his alleged mental

retardation the court should not have imposed on him the burden of showing the

                                         -17-
need for new counsel, his briefs on appeal do not point to any concerns with

counsel that Defendant failed to articulate during the hearings. We conclude that

the court’s inquiry was “sufficient to explore and understand the defendant’s

concerns about the inadequacy of counsel.” United States v. Vargas, 

, 1166 (10th Cir. 2003); see 

n.15 (when a defendant’s

reasons for withdrawal are “insubstantial” and he received “competent

representation,” no further inquiry is required (internal quotation marks omitted));

United States v. Beers, 

, 1302 (10th Cir. 1999) (district-court

inquiry into defendant’s eve-of-trial motion to substitute counsel was adequate

even though it did not afford defendant himself an opportunity to speak; defense

counsel informed the district court of defendant’s reasons, and those reasons were

not substantial); United States v. Johnson, 

, 1491 (10th Cir. 1992)

(district-court inquiry into defendant’s motion to substitute counsel was sufficient

when the court afforded defendant the opportunity to explain his grievances with

counsel and those grievances did not show good cause).

      In short, the district court did not abuse its discretion in refusing to provide

new counsel to Defendant at such a late stage of the prosecution.

      B.     Motion to Withdraw Guilty Plea

      Defendant argues that his Pro Se Pleading and oral statements should have

been interpreted as motions to withdraw his guilty plea and that the district court

abused its discretion in failing to consider them and grant withdrawal. He admits

                                        -18-
that the Pro Se Pleading did not “expressly request” withdrawal of his plea, but

contends that his allegations that defense counsel had induced him to plead guilty

“could mean nothing else.” Aplt. Br. at 50. And he contends that “he repeated

[his request to withdraw his plea] over and over through the course of the

hearing.” 

begin with, when Defendant submitted his Pro Se

Pleading the matter before the district court was whether his counsel should be

replaced. Unless that issue was resolved by permitting him to proceed pro se,

Defendant had no right to submit motions other than through his attorney. See

United States v. Jarvi, 

, 1262 (10th Cir. 2008) (court has discretion

to refuse to consider pro se motion submitted by defendant with counsel); United

States v. Bennett, 

, 49 (10th Cir. 1976) (same). And if the trial judge

has no duty to consider pro se motions by a represented defendant, she likewise

has no duty to investigate whether the defendant is trying to make a pro se

motion.

      Moreover, the pleading spoke in terms of Defendant’s complaints about

counsel, not withdrawal of the plea; and when asked about the pleading by the

district court, Defendant responded, “I just said I’m talking about my appeal

rights. . . . He told me I have my appeal rights even though I took a plea in this

case.” R., Vol. 2, pt. 5 at 820. The court accepted the pleading as a notice of

appeal. (Filing a notice of appeal could not prejudice Defendant.) The court

                                        -19-
acted reasonably in not construing Defendant’s pleading as a pro se motion to

withdraw his plea. And if it had viewed it as such a motion, we can be confident

that it would have exercised its discretion by refusing to consider it: when

Defendant was later explicit in expressing regret about his plea, the court, after

pointing out that withdrawal of the plea would void a very favorable plea bargain,

suggested to Defendant that he consult with his attorney.

      As for the later oral statements by Defendant that he asserts should have

been treated as motions to withdraw his plea, not only were they not framed as

motions (they expressed discontent but did not request relief), but even if

considered to be motions, they were pro se motions by a defendant represented by

counsel. And they were untimely; all were made in response to the district

court’s declaration that it intended to impose a 36-month sentence for violating

the terms of supervised release, after Defendant had already been sentenced on

the drug-distribution charge. See Fed. R. Crim. P. 11(e) (“After the court imposes

sentence, the defendant may not withdraw a plea of guilty or nolo contendere, and

the plea may be set aside only on direct appeal or collateral attack.”). In sum, we

see no error in the district court’s not treating Defendant’s written and oral

communications as motions to withdraw his plea.

      C.     Voluntariness of Plea to 2011 Charge

       To be valid, a guilty plea must “represent[] a voluntary and intelligent

choice among the alternative courses of action open to the defendant.” Hill v.

                                        -20-
Lockhart, 

, 56 (1985) (internal quotation marks omitted). Defendant

argues that his plea to the 2011 offense was involuntary because (1) he did not

understand that the trial court could sentence him to more than 12 months on the

supervised-release violation, and (2) defense counsel misinformed him of the

mandatory-minimum sentence that the government could impose if it filed a

superseding indictment.

      These arguments were not properly presented in the district court. The

court did not err in failing to treat Defendant’s Pro Se Pleading or any of his later

oral complaints as a motion to withdraw his plea because, as explained above, the

court need not consider pro se motions by represented defendants, the purported

motions were not clearly motions, and most of the purported motions were

untimely. Nor has Defendant pointed to a proper motion in district court

challenging his plea. Accordingly, our review is only for plain error. See United

States v. Weeks, 

, 1198 (10th Cir. 2011). We are particularly

reluctant to hold that a pro se motion by a represented defendant preserves an

issue for appeal because to do so is to instruct district courts that they must

consider and resolve such pro se motions. If such a motion preserved an issue

even if the trial court exercised its discretion not to address the motion, we could

not impose the restrictions attendant to plain-error review and would ordinarily

(unless the motion was patently meritless) have to remand for a hearing on the




                                         -21-
motion if the issue was pursued on appeal. District courts would soon learn that

the more efficient approach would be to rule on all pro se motions.

      “Plain error occurs when there is (1) error, (2) that is plain, which (3)

affects the defendant’s substantial rights, and which (4) seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” 

omitted). The obstacle that Defendant cannot surmount is the

second requirement of plain-error review—namely, that the alleged error is plain.

When the existence of an error depends on what the facts are—such as whether

defense counsel informed the defendant of the maximum possible sentence—the

error cannot be said to be “plain” unless the facts are uncontestably established,

either because they are undisputed or undisputable or because the factfinder made

a proper finding of fact. The error is not “plain” if the “fact” establishing the

error may be false. As we have stated:

      It is not enough that a hearing on remand may show that [there was
      error]. If that were all that is required, we could reverse and remand
      because of ‘plain error’ even though it may ultimately be resolved
      that there was no error at all. Such a fruitless, wasteful procedure is
      not the office of plain-error review.

United States v. Lewis, 

, 1288 (10th Cir. 2010); see United States v.

Frost, 

, 977 (10th Cir. 2012) (“Where the determinative facts are

missing from the record due to the defendant’s failure to make a timely objection,

we will not find plain error based on the possibility that better factual

development would have made the error clear.”). A disputed assertion of fact

                                         -22-
cannot support a claim of plain error except in the rare case—not present

here—where “the appellant can establish the certainty of a favorable finding on

remand.” 

.

      Here, there is no such certainty that there would be a finding favorable to

Defendant on remand. To be sure, some of Defendant’s own statements support

his contentions. But they are not unchallenged. Defendant’s attorney twice told

the district court that he had properly informed Defendant that the 12-month

sentence was not guaranteed. Most relevant, on the first occasion, before

Defendant was sentenced on the drug charge, Defendant voiced no objection to

his attorney’s statement, responding only “I ain’t got nothing to say” when the

court asked “So what’s the problem?” R., Vol. 2 pt. 5 at 818. Nor is the record

clear that defense counsel misinformed Defendant about the potential mandatory

minimum sentence; counsel told the court only that he had “talked to [Defendant]

specifically about the 20 years mandatory minimum if he was found guilty” under

the superseding indictment. 

    Sentence on Revocation of Supervised Release

      Defendant challenges his three-year sentence for violating the terms of his

supervised release as both procedurally and substantively unreasonable. We are

not persuaded.

      Defendant argues that his sentence is procedurally unreasonable because (1)

the district court failed to take into account his mental retardation in sentencing

                                          -23-
him and did not read the PSR; (2) the court failed to consider the guidelines

policy statements for supervised-release violations; and (3) the court premised its

sentencing decision on the mistaken belief that Defendant had committed his new

drug offense while on supervised release. These arguments, however, were not

presented to the district court. Therefore our review is for plain error. See

United States v. Ruby, 

, 1225–26 (10th Cir. 2013).

      We easily dispose of Defendant’s first two arguments because they lack a

proper factual basis. Absent argument on these matters at sentencing, the district

court had no obligation to say that it was taking Defendant’s mental deficiencies

into account, that it had read the PSR, and that it had considered the guidelines

policy statements. See United States v. Pinson, 

, 833–36 (10th Cir.

2008) (Sentencing court that varies from the guidelines need not discuss every

§ 3553(a) factor but need only state its reasons for varying and address

defendant’s material, nonfrivolous arguments.); United States v. Zuniga-Chavez,

, 1202 (10th Cir. 2006) (“The sentencing court is not required to

consider individually each factor listed in § 3553(a) before issuing a sentence.

Moreover, we do not demand that the district court recite any magic words to

show that it fulfilled its responsibility to be mindful of the factors that Congress

has instructed it to consider.” (brackets and internal quotation marks omitted)).

Therefore, we cannot presume from the court’s silence that Defendant’s

allegations are true. Indeed, the evidence in the record suggests otherwise; for

                                         -24-
example, the court apparently had read the PSR because it referenced specific

facts from the PSR during its comments. We will not remand for an evidentiary

hearing on whether the district court considered Defendant’s mental condition or

the guidelines policy statement, because the very fact that the court could well

state on remand that it did consider them is enough to establish that the alleged

errors could not be “plain.” See 

; 

.

      Defendant’s third argument requires further discussion. He argues that the

district court’s “sentencing decision . . . rested on a significant factual error,

namely, [its] belief that [Defendant] committed the new drug offense while on

supervised release, when in fact his alleged drug activities had ended before his

supervised release began.” Aplt. Br. at 58. Defendant is correct (1) that he

committed the drug offense while he was still at the halfway house and before his

term of supervised release, and (2) that the district court incorrectly assumed that

Defendant had committed the offense while on supervised release. The court’s

error, however, appears to have been an invited one. At the outset of the

proceedings on revocation, immediately after Defendant was sentenced on his

drug offense, defense counsel stated:

      Your Honor, I did explain to my client that the reason for the
      revocation is because the conviction that we just went through and I
      think he understands that as not only an offense, it’s a mandatory
      revocation offense, and as such, I think we can stipulate to the actual
      offense. In the Plea Agreement it also outlined that we would be
      stipulating and that there would be revocation.


                                          -25-
R., Vol. 2, pt. 5 at 843–44. This was error, because the probation-office petition

for revocation referenced only the firearms charge and failures to communicate

with the probation office, not the drug charge, and the plea agreement did not

state the grounds for revocation. Invited errors are waived and not grounds for

reversal. See United States v. Lopez-Medina, 

, 733 n.10 (10th Cir.

2010) (“[T]he invited-error doctrine . . . prevents a party from inducing action by

a court and later seeking reversal on the ground that the requested action was in

error.” (internal quotation marks omitted)). Further, Defendant has not satisfied

his burden under plain-error review to show that he was prejudiced by the court’s

error. The district court found that Defendant had committed the violations

alleged in the revocation petition. And we have no reason to believe that the

court would have imposed a lesser sentence if it had been advised that the drug

offense predated Defendant’s supervised release. Indeed, defense counsel was

probably incautious when he made his error because the accuracy of his statement

was inconsequential.

      As for Defendant’s claim of substantive unreasonableness, he argues that

his mental retardation so diminishes his personal culpability that the three-year

sentence must be set aside. But we can reverse only if the sentence, in light of

the sentencing factors referenced in 18 U.S.C. § 3583(e), was an abuse of

discretion because it was “arbitrary, capricious, whimsical, or manifestly

unreasonable.” United States v. Damato, 

, 838 (10th Cir. 2012)

                                        -26-
(internal quotation marks omitted). In light of Defendant’s criminal history, as

well as his denial of responsibility at the sentencing hearing, we cannot say that

the sentence was an abuse of discretion. It was eminently reasonable to believe,

as the district court did, that Defendant would continue his criminal ways if not

incarcerated because he had “already squandered a chance to show that he is

capable of leading a law-abiding life and following the terms of supervision and

working with the Probation Office.” R., Vol. 2, pt. 5 at 849–50. Although

retardation may reduce culpability, it need not override all other proper

sentencing considerations.

III.   CONCLUSION

       We AFFIRM the judgment of the district court.




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