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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-17471
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 2:06-cr-00117-JES-MRM-1



UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,

versus

MICHAEL TERRILL FAIRCLOTH,

                                                         Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (October 18, 2017)

Before ROSENBAUM, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Michael Terrill Faircloth appeals his conviction for possession of

ammunition as a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and

924(e). He argues that the district court abused its discretion in denying his motion

to withdraw his guilty plea. Faircloth asserts that he did not knowingly plead

guilty because he was repeatedly “misadvised” about a sentence of 15 years to life

that he faced under the Armed Career Criminal Act (“ACCA”). After careful

consideration, this Court affirms Faircloth’s conviction.

                                  I.    BACKGROUND

         A. Facts

      In October 2006, a federal grand jury indicted Faircloth for possession of

ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and

924(e). The indictment listed 11 instances in which Faircloth had been convicted

of felonies in Florida. Faircloth entered a plea agreement, which stated that he

faced a mandatory minimum term of imprisonment of 15 years to life for his

offense. It further stated that for the § 924(e) armed-career-criminal sentencing

enhancement to apply, Faircloth must have had three prior convictions for a violent

felony or serious drug offense.

      The government agreed to recommend a sentence within the guideline range,

not to oppose a downward adjustment for acceptance of responsibility, and to

consider moving for a downward departure for substantial assistance. Faircloth


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acknowledged in the agreement that he was agreeing to plead guilty voluntarily

with an understanding of the nature of the offense and penalties and that he was

satisfied with his representation. The agreement also included a factual basis

stating that (1) Faircloth was in fact guilty of the charge in the indictment; (2) he

had prior Florida felony convictions for second-degree grand theft, felonious

firearm possession, escape, armed trespass on property, being a felon in possession

of a firearm, carrying a concealed weapon, burglary of a structure, grand theft,

resisting arrest with violence, and felony fleeing; (3) in November 2005, a police

officer removed Faircloth from a stolen car, arrested him, conducted a search

incident to arrest, and found in his left front jeans pocket six rounds of ammunition

manufactured out of state, a knife, and glass tubes consistent with crack pipes; and

(4) the ammunition was manufactured out of state.

      A magistrate judge held a change-of-plea hearing in May 2007. Faircloth

said under oath that he finished high school, had some college, and was still going

to school; he worked as a paralegal; he was not suffering from any health issue and

was not taking any medication that would interfere with his ability to think,

concentrate, or understand the proceedings; he spoke and read English; he had

been under the care of a psychologist or psychiatrist for only anxiety; and he had

been addicted to drugs, alcohol, and medication, but he had not taken illegal

substances or had alcohol for 18 months. He further said that he had read the


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charges and understood them, had discussed the charges with his attorney, and was

satisfied with his representation. He stated that he wanted to plead guilty because

he was in fact guilty and that he had not been threatened or coerced to plead guilty.

He confirmed that he had read his plea agreement, discussed it with his attorney,

and understood it. He said he understood that he could not withdraw his guilty

plea if the court did not follow the plea agreement’s sentencing recommendations.

      During the hearing, the magistrate judge advised Faircloth several times that

his offense was punishable by a mandatory minimum term of imprisonment of 15

years and a maximum term of life imprisonment.             Faircloth stated that he

understood he could not withdraw his guilty plea if his attorney’s predictions about

his guideline range or sentence proved inaccurate. He said he understood the

possible penalties. He also said he understood that, by pleading guilty, he was

waiving his right to plead not guilty and go to trial and the various rights he would

have at trial.   He confirmed that he understood the elements of his offense.

Faircloth admitted that he knew he had six rounds of ammunition in his pocket

when an officer arrested him in November 2005 and that his plea agreement

accurately listed his prior felony convictions. After this colloquy, Faircloth pled

guilty.

      The magistrate judge prepared a report and recommendation recommending

that the district court accept the guilty plea. Faircloth waived the objection period,


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and the district court adopted the recommendation. The presentence investigation

report (“PSI”) determined that Faircloth’s enhanced base offense level as an armed

career criminal was 33, under U.S.S.G. § 4B1.4(b)(3)(B). The probation officer

applied a total 3-level reduction for acceptance of responsibility under U.S.S.G. §

3E1.1, resulting in an enhanced offense level of 30. But for his armed-career-

criminal enhancement, Faircloth’s total offense level would have been 21.

Faircloth’s 17 criminal-history points put him in criminal-history category VI.

Based on his total offense level of 30 and criminal-history category of VI, the

probation officer calculated Faircloth’s guideline range as 168–210 months’

imprisonment.     Because the mandatory minimum sentence of 15 years’

imprisonment was higher than the low end of the guideline range, the probation

officer determined that Faircloth’s guideline range was 180–210 months’

imprisonment.

      The district court held a sentencing hearing in September 2007. The court

adopted the PSI’s factual statements and guideline applications and granted a four-

level downward departure for substantial assistance, which reduced Faircloth’s

total offense level to 26 and his guideline range to 120−150 months’ imprisonment.

The court denied a motion for a downward variance and sentenced Faircloth to 120

months’ imprisonment and 5 years’ supervised release. Faircloth did not directly

appeal his sentence.


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      In March 2016, after the Supreme Court held in Johnson v. United States,

(2015), that the residual clause of the ACCA was

unconstitutionally vague, Faircloth filed a pro se § 2255 motion to vacate his

sentence or, in the alternative, to withdraw his guilty plea. The district court found

that Faircloth’s sentence had been unconstitutionally enhanced under the ACCA

from a maximum 10-year prison sentence to a minimum 15-year prison sentence

and that the court had sentenced Faircloth using an incorrect base offense level.

Accordingly, the court granted Faircloth’s § 2255 motion, vacated the underlying

criminal judgment, and set the case for resentencing.

      In September 2016, before resentencing, Faircloth moved to withdraw his

guilty plea under Federal Rule of Criminal Procedure 11(d)(2)(B), arguing that he

did not knowingly plead guilty because he was repeatedly “misadvised” that he

faced a sentence of 15 years to life, rather than a maximum of 10 years’

imprisonment. He asserted that he would have gone to trial if he had known that

his maximum sentence was only 10 years. Faircloth acknowledged that he had

legal counsel who correctly advised him about the law as it existed when he pled

guilty, but he nevertheless contended that he was “misadvised.” Faircloth further

argued that, because a trial would take no more than two days and he would

stipulate that he was a convicted felon and that he was found in possession of

ammunition that had moved through interstate commerce, withdrawing his guilty


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plea would not cause the court to expend significant resources or the government

to suffer harmful prejudice. Finally, Faircloth cited United States v. Dominguez

Benitez, 

(2004), and argued that he would have gone to trial but for his

understanding that he faced a more severe penalty. Faircloth submitted an affidavit

stating that, if he had been advised that he faced a maximum of 10 years’

incarceration instead of 15 years to life in prison, he would have proceeded to trial.

          B. Procedural History

      The district court denied Faircloth’s motion, concluding for several reasons

that he had not shown a fair and just reason to withdraw his guilty plea. First, the

court observed that a substantial delay occurred between Faircloth’s guilty plea and

his motion to withdraw his plea, and the only basis for the motion was a decrease

in the statutory maximum. Second, it concluded that Faircloth had the close

assistance of counsel before and during his change-of-plea and sentencing

hearings, where his criminal history was discussed at length. Third, it reasoned

that the plea colloquy established that Faircloth’s plea was knowing and voluntary

and that the law was then clear that the ACCA enhancement applied. Finally, the

court determined that granting the motion would prejudice the government because

the government would have to prosecute the case a decade after the relevant

events.




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      After denying Faircloth’s motion, the district court resentenced Faircloth to

41 months’ imprisonment. Faircloth now appeals his conviction and sentence.

                                II.     DISCUSSION

      On appeal, Faircloth argues the district court abused its discretion in denying

his motion to withdraw his guilty plea. We review for abuse of discretion a district

court’s denial of a request to withdraw a guilty plea . United States v. Izquierdo,

, 1276 (11th Cir. 2006). A court does not abuse its discretion unless

the denial is “arbitrary or unreasonable.” United States v. Brehm, 

,

1298 (11th Cir. 2006) (quotation omitted).       Among rulings falling into this

category, failure to apply the proper legal standard or to follow proper procedures

in making the determination, or making findings of fact that are clearly erroneous

constitute an abuse of discretion. 

. The defendant

carries the burden on a motion to withdraw a guilty plea. 

reviews

for plain error arguments that were not raised before the district court. United

States v. Evans, 

, 1338 (11th Cir. 2007). Cursory arguments raised

for the first time in a reply brief are deemed abandoned. United States v. Thomas,

, 1033 (11th Cir. 2001).

   Before accepting a guilty plea, Rule 11 requires that a district court address a

defendant personally in open court, inform the defendant of, among other things,

the maximum possible penalty and any mandatory minimum penalty, and


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determine that the defendant’s plea is knowing and voluntary. Fed. R. Crim. P.

11(b)(1), (2). To be knowing and voluntary, a guilty plea must satisfy the three

core concerns of Rule 11 that the plea must be free from coercion, the defendant

must understand the nature of the charges, and the defendant must know and

understand the consequences of his guilty plea. United States v. Mosley, 

, 1322 (11th Cir. 1999). There is a strong presumption that statements a

defendant makes during a plea colloquy are true. United States v. Medlock, 

, 187 (11th Cir. 1994). A defendant who seeks reversal of his conviction

after a guilty plea on the grounds that the district court committed plain error under

Rule 11 must show a reasonable probability that, but for the error, he would not

have pled guilty. Dominguez 

. “Plain error” is ”(1) error,

(2) that is plain, and (3) affects substantial rights.” United States v. Rodriguez, 

, 1298 (11th Cir. 2005) (citation and quotation marks omitted). To affect

“substantial rights,” an error must have been prejudicial, and it must have affected

the outcome of the district-court proceedings. U.S. v. Olano, 

(1993). It a defendant establishes all three of these requirements, we may then

“exercise [our] discretion to notice a forfeited error, but only if (4) the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” 

quotation marks omitted).




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      While pre-sentence motions to withdraw should be liberally construed, a

defendant enjoys no absolute right to withdraw a guilty plea. United States v.

Buckles, 

(11th Cir. 1988). A defendant may withdraw a guilty plea

after the court accepts the plea but before sentencing if “the defendant can show a

fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d). To

determine whether a defendant has met this burden, the district court may consider

the totality of the circumstances surrounding the plea, including factors such as

whether (1) close assistance of counsel was available, (2) the plea was knowing

and voluntary, (3) judicial resources would be conserved, and (4) the government

would be prejudiced if the defendant were allowed to withdraw his plea. 

. “[T]he 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.” 

When a defendant received

close and adequate assistance of counsel and entered a knowing and voluntary

guilty plea, the court need not consider the remaining factors. United States v.

Gonzalez-Mercado, 

, 801 (11th Cir. 1987).

      A change in the law that lowers a defendant’s maximum penalty below what

he was advised at the time of his plea does not retroactively invalidate an otherwise

knowing and voluntary guilty plea. United States v. Sanchez, 

, 1285

(11th Cir. 2001) (en banc), abrogated on other grounds by United States v. Duncan,


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, 1308 (11th Cir. 2005). A guilty plea is not invalid merely because

a defendant relied on then-applicable penalties when entering his plea and states

that he would not have pled guilty had he known that later judicial decisions would

lower the penalties. Brady v. United States, 

, 749–50, 757 (1970).

      When assessing prejudice to the government, the district court may consider

“the time, money, and effort the government would have to devote to reassembling

witnesses and evidence that were allowed to scatter after the acceptance of the

guilty plea.” 

.

      Here, as an initial matter, Faircloth’s cursory argument that the

circumstances surrounding his plea were “suspicious” is abandoned because he did

not raise it in his opening brief and did not explain in his reply brief what was

“suspicious” about his plea. 

. Further, because Faircloth

did not expressly identify the “voluntariness” of his plea as an issue in his opening

brief or before the district court, he arguably abandoned and waived that issue. Id.;

. However, because Faircloth argues that his plea was not

“voluntary” for the same reasons it was not “knowing,” and these arguments

should be rejected for the same reasons, this Court may decide to reach the merits

of his “voluntariness” arguments.         Additionally, even though Faircloth has

completed his sentence, this appeal is not moot because his conviction may result

in collateral consequences. Sibron v. New York, 

, 57 (1968) (“[A]


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criminal case is moot only if it is shown that there is no possibility that any

collateral legal consequences will be imposed on the basis of the challenged

conviction.”). For example, if this Court overturned his conviction, Faircloth

might seek credit for time served against other sentences.

      The district court did not abuse its discretion in denying Faircloth’s motion

to withdraw his guilty plea. First, the district court did not abuse its discretion in

concluding that Faircloth had the close assistance of counsel before, during, and

after he pled guilty.     Faircloth was represented at his change-of-plea and

sentencing hearings, and Faircloth confirmed at the plea colloquy that he had

discussed his plea with his attorney and was satisfied with his representation.

      Second, the district court did not abuse its discretion in concluding that

Faircloth’s plea was knowing and voluntary. Faircloth’s statements under oath at

the plea colloquy, which the court was entitled to rely on, confirmed that (1) he

understood English, had no mental-health issues, and had completed high school

and some college; (2) he wanted to plead guilty because he was in fact guilty, and

he had not been threatened or coerced to do so; (3) he had discussed the charges

and plea agreement with his attorney and understood them; and (4) he understood

that he faced 15 years’ to life imprisonment, and that he could not withdraw his

guilty plea if his attorney’s predictions about his guideline range or sentence

proved inaccurate. 

; 

.


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      Faircloth concedes that he was correctly advised about potential penalties

under then-applicable law. Precedent from the Supreme Court and this Court

forecloses his argument that being “misadvised” in light of later changes in the law

retroactively invalidated his plea. 

–50, 757; 

. While Faircloth argues that Brady involved a collateral attack on a

conviction rather than a direct appeal after a conviction had been set aside, Brady

did not turn on that distinction, and Faircloth fails to explain why it matters.

Although Faircloth may have elected to go to trial rather than plead guilty if he had

known that he faced less severe penalties under later changes in the law, this fact is

insufficient to show that his plea was not knowing and voluntary at the time he

entered it. 

–50, 757; 

. Faircloth’s

reliance on Dominguez Benitez is misguided. Dominguez Benitez concerned the

showing a defendant must make to demonstrate that a plain error under Rule 11

affected his substantial rights. But here, Faircloth has not shown a Rule 11 

.

      Because the district court did not abuse its discretion in concluding that

Faircloth had the close assistance of counsel and entered a knowing and voluntary

guilty plea, the district court was not required to address the remaining factors.

. Nevertheless, the district court did not abuse

its discretion in concluding that withdrawing Faircloth’s guilty plea would


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prejudice the government. While Faircloth’s willingness to stipulate to certain

elements would likely lessen the resulting prejudice, the government would have

still needed to prove that Faircloth knowingly possessed the ammunition in

question. Though it is difficult to conceive of how Faircloth could not have known

that ammunition was in his own front jeans pocket, a substantial, more-than-eight-

year delay occurred between Faircloth’s plea and his motion to withdraw it.

. We therefore cannot say that the district court erred in

considering that the government would have had to reassemble its case long after

the relevant events, after witnesses’ memories have likely faded, and after evidence

may have been “allowed to scatter.” 

.

      Finally, the district court did not, and was not required to, consider whether

withdrawing the guilty plea would cause the court to expend judicial resources.

.

                              III.   CONCLUSION

      Accordingly, the district court did not act arbitrarily or unreasonably in

concluding that Faircloth failed to show a fair and just reason for withdrawing his

guilty plea. Fed. R. Crim. P. 11(d); 

. This Court should

affirm his conviction.

             AFFIRMED.




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