[DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                       FILED
                         FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                           ________________________ ELEVENTH CIRCUIT
                                                                  NOV 28, 2007
                                 No. 06-16029                   THOMAS K. KAHN
                             Non-Argument Calendar                  CLERK
                           ________________________

                     D. C. Docket No. 06-00097-CR-TWT-1-1

UNITED STATES OF AMERICA,


                                                                   Plaintiff-Appellee,

                                       versus

ANTHONY REID,

                                                               Defendant-Appellant.

                           ________________________

                    Appeal from the United States District Court
                       for the Northern District of Georgia
                         _________________________

                               (November 28, 2007)

Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

      Anthony Reid appeals his convictions and sentences for conspiracy to

possess and possession with intent to distribute heroin, in violation of 21 U.S.C.
§§ 846 and 841, respectively. After a thorough review of the record, we affirm.

      I. Background

      Reid was charged along with Chinedu Odimgbe with conspiracy to possess

and possession with intent to distribute heroin. Reid entered a guilty plea to both

counts without a plea agreement. According to the factual proffer at the plea

hearing, Reid and Odimgbe engaged in a drug transaction with a confidential

informant, selling the informant 200 grams of heroin in exchange for $20,000. The

transaction was recorded by the informant. Reid explained that he was working as

security for Odimgbe at Odimgbe’s direction, but that he was aware of the

transaction. He otherwise admitted that the factual proffer was correct. Reid stated

that he understood the charges against him and his right to a trial, and that he was

pleading guilty freely and voluntarily. Defense counsel stated that she had

explained to Reid that he would be debriefed by the government and could receive

a favorable recommendation upon his cooperation. Counsel further stated that she

had no doubt as to Reid’s competency to enter a plea. The court confirmed that

Reid understood that the sentencing determination would be left to the court. After

confirming that Reid understood his rights and the nature of the charges against

him, the court adjudicated Reid guilty.

      Thereafter, Reid notified the court that he wished to withdraw his guilty



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plea, alleging that counsel has mislead him and coerced him into pleading guilty,

and he maintained his innocence. He asserted that he had requested that counsel

hire an expert to analyze the audiotape from the transaction, but that counsel had

refused. The court conducted a hearing into the allegations, at which Reid testified

to the coercion. Counsel disputed the allegations, although she admitted that she

put “a little pressure” on Reid to make a decision whether or not to enter the plea.

She explained that the cost of an expert was prohibitive, especially in the absence

of any reason to believe the tape was fabricated. The government argued that it

would be prejudiced should the court permit Reid to withdraw his plea. The court

denied Reid’s motion to withdraw his plea.

      The probation officer prepared a presentence investigation report (“PSI”),

assigning a base offense level of 26 given the amount of drugs involved. The

probation officer then recommended adding a two-level enhancement for

leadership role, U.S.S.G. § 3B1.1(c), and denying reductions under the safety-

valve provision, § 2D1.1(b)(7), and for acceptance of responsibility, § 3E1.1. With

a total offense level of 28, and a criminal history category I, the resulting guideline

range was 78 to 97 months; Reid also faced a 60-month mandatory minimum.

Reid objected to the calculations.

      At sentencing, the court heard testimony from several witnesses, including



                                           3
Reid’s codefendant. According to Odimgbe, Reid brought the heroin to Atlanta,

negotiated the sale, and instructed Odimgbe to retrieve the drugs from the van

where they were kept. Odimgbe testified that he acted at Reid’s direction.

      Reid also testified, contradicting Odimgbe’s version of the transaction. The

court denied the safety-valve and acceptance-of-responsibility reductions and

applied the leadership enhancement, concluding that Reid was not truthful in his

testimony. The court sentenced Reid to 85 months’ imprisonment, explaining that

it reached this sentence under 18 U.S.C. § 3553(a) based on Reid’s false testimony

and the degree and extent of his criminal conduct. Reid now appeals, challenging

(1) whether the court should have permitted him to withdraw his plea; (2) whether

the court should have directed defense counsel to obtain an expert to analyze the

audiotape of the drug deal; (3) whether he was entitled to the safety-valve

reduction; (4) whether the court improperly applied the leadership enhancement;

(5) whether he was entitled to a reduction for acceptance of responsibility; and

(6) whether the sentence imposed was reasonable.

      III. Discussion

      1. Withdrawal of Plea

      We review the denial of a request to withdraw a guilty plea for an abuse of

discretion. United States v. Freixas, 

, 1316 (11th Cir. 2003). Thus,



                                          4
in reviewing a district court’s refusal to permit the withdrawal of a guilty plea, we

defer to the court’s application of the criteria set forth below, and we will reverse

only if the court’s ultimate conclusion is arbitrary or unreasonable. 

      Pursuant to Fed. R. Crim. P. 11(d), a court may permit a defendant to

withdraw his plea before the court imposes a sentence for a fair and just reason.

Fed. R. Crim. P. 11(d)(2)(B). In determining whether a defendant has shown a fair

and just reason, the court evaluates the totality of the circumstances, including:

(1) whether the defendant had close assistance of counsel; (2) whether his plea was

knowing and voluntary; (3) whether judicial resources would be conserved; and

(4) whether the government would be prejudiced by withdrawal. 

(citing United States v. Buckles, 

, 472 (11th Cir. 1988)).

Further, the good faith, credibility, and weight of a defendant’s assertions in

support of his motion to withdraw are left to the district court to decide. 

. Moreover, [t]here is a strong presumption that statements made

during the [plea] colloquy are true. United States v. Medlock, 

, 187

(11th Cir. 1994). Consequently, a defendant bears a heavy burden to show his

statements [under oath] were false. United States v. Rogers, 

, 168

(11th Cir. 1988). We have also noted that a defendant cannot complain of coercion

where his attorney used his best professional judgment to recommend that the



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defendant plead guilty. 

.

       Here, we conclude that Reid did not meet the heavy burden of showing a fair

and just reason for withdrawal of his guilty plea. The court properly found that:

(1) Reid had close assistance of counsel in making his guilty plea; (2) the plea was

knowing, voluntary, and free from coercion; (3) the government would be

prejudiced by having to prepare for trial again if Reid were allowed to withdraw

his plea; and (4) the interests of justice would not be served by the withdrawal.

Accordingly, the district court did not abuse its discretion by not allowing Reid to

withdraw his guilty plea.

       2. Expert

       Because Reid did not raise this issue in the district court, we review for plain

error. United States v. Gresham, 

, 1265 (11th Cir. 2003). To prevail

under the plain error standard, the appellant must show that “(1) an error occurred;

(2) the error was plain; (3) it affected his substantial rights; and (4) it seriously

affected the fairness of the judicial proceedings.” 

not the role of the district court to direct an attorney to make strategic

trial decisions; trial tactics are for defense counsel to formulate. Blanco v.

Singletary, 

, 1495 (11th Cir. 1991) (habeas context). Accordingly,

“unless there are exceptional circumstances or unless the attorney is so



                                             6
incompetent as to deprive the defendant of the right to effective assistance of

counsel,” the attorney must be able to determine questions of strategy during trial,

and her decisions “must be binding.” 

71 (internal citations and quotations

omitted). A district court “overreache[s] its authority and infringe[s] upon the

[attorney-client] relationship” when it directs trial strategy. 

      Additionally, while a defendant may be entitled to attack a conviction when

funds to retain an expert are withheld, “[a] defendant must show the trial court that

there exists a reasonable probability both that an expert would be of assistance to

the defense and that the denial of expert assistance would result in a fundamentally

unfair trial.” Messer v. Kemp, 

, 960 (11th Cir. 1987) (habeas

context).

      Here, defense counsel made a strategic decision not to retain an expert to

analyze the audiotape and testify to the findings, and it was not the district court’s

role to direct her otherwise, particularly when there was no reason to question the

authenticity of the audiotape. Moreover, even if the district court had erred, this

would not satisfy the plain error standard because the error did not affect Reid’s

substantial rights or seriously affect the fairness of the judicial proceeding.

             3. Safety-valve

      We review a district court’s safety-valve fact-finding for clear error. United



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States v. Cruz, 

, 1557 (11th Cir. 1997). Under the safety-valve

provision, a district court shall impose a sentence without regard to any statutory

mandatory minimum if a defendant convicted of certain drug crimes satisfies

certain criteria, U.S.S.G. § 5C1.2, and also give a reduction in the defendant’s

offense level, U.S.S.G. § 2D1.1(b)(6). A defendant has the burden of proving his

eligibility for this relief. 

. Section 5C1.2(5) “requires a

defendant to both truthfully and fully disclose information within [his] knowledge

relating to the crime for which [he] is being sentenced.” United States v. Figueroa,

, 1283 (11th Cir. 2000). A district court cannot apply the reduction

if it determines that the defendant withheld or misrepresented information, even if

the information would not have aided further investigation or prosecution if

properly disclosed. See 

defendant who receives an enhancement

for role in the offense is not entitled to receive the reduction. U.S.S.G.

§ 5C1.2(a)(4), comment. (n.5).

      Here, the district court properly refused to apply the reduction because it

concluded that Reid was not truthful in his interviews with the government or

when he testified during sentencing, and because it found that Reid directed his

accomplice’s actions.

      4. Role Enhancement



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      We review a district court’s decision to enhance a defendant’s offense level

due to his aggravating role for clear error. United States v. Phillips, 

, 1055 (11th Cir. 2002). The guidelines provide for a two-level increase “[i]f

the defendant was an organizer, leader, manager, or supervisor in any criminal

activity.” U.S.S.G. § 3B1.1(c). In distinguishing a leadership role, the district

court should consider “the exercise of decision making authority, the nature of

participation in the commission of the offense, the recruitment of accomplices, the

claimed right to a larger share of the fruits of the crime, the degree of participation

in planning or organizing the offense, the nature and scope of the illegal activity,

and the degree of control and authority exercised over others.” U.S.S.G. § 3B1.1,

comment. (n.4). “[T]he assertion of control or influence over only one individual

is enough to support a § 3B1.1(c) enhancement.” United States v. Jiminez, 

, 1251 (11th Cir. 2000). Moreover, responsibility for most of the

preparation, planning, and details of the criminal operation is sufficient to support

a § 3B1.1(c) enhancement. 

.

      Here, the district court did not clearly err by assessing an aggravating-role

enhancement because it found that Reid was the source of the heroin and had

directed Odimgbe’s actions during the offense.

      5. Acceptance of Responsibility



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      We review a district court’s factual findings concerning a reduction for

acceptance of responsibility for clear error. United States v. Williams, 

, 756 (11th Cir. 2005). “The defendant bears the burden of clearly

demonstrating acceptance of responsibility and must present more than just a guilty

plea.” See United States v. Sawyer, 

, 1323 (11th Cir. 1999). “A

district court’s determination that a defendant is not entitled to [a reduction for]

acceptance of responsibility will not be set aside unless the facts in the record

clearly establish that a defendant has accepted personal responsibility.” 

is entitled to a two-level reduction if he “clearly demonstrates

acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). In determining

whether a defendant qualifies for the reduction, a district court may consider the

nature of the defendant’s legal challenges to his conviction and sentence, along

with the other circumstances of the case. United States v. Smith, 

, 989

(11th Cir. 1997) (en banc). Factual objections to the sentence that amount to a

denial of factual guilt are inconsistent with acceptance of responsibility. 

district court properly concluded that Reid’s testimony during the

sentencing hearing was false and argumentative. Although Reid pleaded guilty to

participating in the drug transaction, he did not accept full responsibility for his

role in the offense. Accordingly, the district court did not clearly err in finding that



                                           10
Reid did not meet his burden of establishing that he had accepted personal

responsibility.

      6. Reasonableness of Sentence

      We review the final sentence imposed by the district court for

reasonableness. United States v. Talley, 

, 788 (11th Cir. 2005). When

evaluating the reasonableness of a sentence, we consider the factors outlined in

18 U.S.C. § 3553(a) and the district court’s reasons for imposing the particular

sentence. United States v. Williams, 

, 1360-61 (11th Cir. 2006), pet.

for cert. dismissed, 

(2007). Unreasonableness may be procedural,

when the court’s procedure does not follow Booker’s1 requirements, or substantive.

United States v. Hunt, 

, 1182 n.3 (11th Cir. 2006).

      In order to impose a procedurally reasonable sentence, the district court must

first correctly calculate the guidelines. 

. Second, the

district court must consider the following factors, set forth in § 3553(a), to

determine a reasonable sentence: (1) the nature and circumstances of the offense

and the history and characteristics of the defendant; (2) the need to reflect the

seriousness of the offense, to promote respect for the law, and to provide just

punishment for the offense; (3) the need for deterrence; (4) the need to protect the



      1
          United States v. Booker, 

, 

, 

(2005).

                                               11
public; (5) the need to provide the defendant with needed educational or vocational

training or medical care; (6) the kinds of sentences available; (7) the Sentencing

Guidelines range; (8) pertinent policy statements of the Sentencing Commission;

(9) the need to avoid unwarranted sentencing disparities; and (10) the need to

provide restitution to victims. 

U.S.C. § 3553(a)). However, the

court is not required to discuss each § 3553(a) factor, and “an acknowledgment by

the district court that it has considered the defendant’s arguments and the factors

in § 3553(a) is sufficient under Booker.” 

. In fact, this

court recently held that a district court need not provide a lengthy explanation

when it imposes a guidelines sentence in a “typical case.” United States v. Agbai,

, 1229-1230 (11th Cir. 2007) (citing Rita v. United States, 551 U.S.

___, 

, 

(2007)). Rather, the district court need only

set forth enough to show that it “considered the parties’ arguments and has a

reasoned basis for exercising his own legal decisionmaking authority.” 

      Here, the district court explicitly considered Reid’s denial under oath of the

degree and extent of his criminal responsibility, and “all the facts and

circumstances of the case.” It further considered the § 3553(a) sentencing factors

and stated that it was sentencing Reid in the middle of the guideline range because

of the aggravating factors in the case that were not taken into account in the



                                          12
calculation of the guideline range. We agree with the district court that the

sentence imposed was reasonable.

      III. Conclusion

      For the foregoing reasons, we AFFIRM Reid’s convictions and sentences.

      AFFIRMED.




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