USA v. Ivan Vaclavik

Filing

Opinion issued by court as to Appellant Ivan Vaclavik. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-13725

Date Filed: 04/06/2016

Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13725
Non-Argument Calendar
________________________
D.C. Docket No. 9:15-cr-80019-WPD-1

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
IVAN VACLAVIK,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 6, 2016)
Before TJOFLAT, JORDAN and JILL PRYOR, Circuit Judges.
PER CURIAM:

Case: 15-13725

Date Filed: 04/06/2016

Page: 2 of 6

Ivan Vaclavik appeals his conviction and 27-month sentence for attempted
illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(1). Mr.
Vaclavik raises two issues on appeal. First, he argues that the district court abused
its discretion in denying his motion to withdraw his guilty plea without an
evidentiary hearing.

Second, he contends that the district court improperly

enhanced his sentence based on a prior conviction. After careful review, we
affirm.
I
Mr. Vaclavik lacked legal status in the United States, had been previously
removed, and attempted to reenter the United States illegally in violation of 8
U.S.C. § 1326(a) and (b)(1).

He entered into a plea agreement with the

government and indicated his desire to plead guilty. At a change-of-plea hearing,
Mr. Vaclavik was placed under oath, and the court explained the consequences of a
guilty plea to him. Mr. Vaclavik acknowledged that his attorney had discussed the
Sentencing Guidelines with him, and indicated that he would still like to plead
guilty. The court then advised Mr. Vaclavik that, with his criminal history, the
maximum penalty could amount to ten years in prison. Mr. Vaclavik stated that he
still wanted to plead guilty. The court explained the immigration consequences of
a guilty plea to Mr. Vaclavik, and he again stated that he still wanted to plead
guilty.
2

Case: 15-13725

Date Filed: 04/06/2016

Page: 3 of 6

The pre-sentence investigation report stated that Mr. Vaclavik’s prior state
convictions included disorderly conduct and assault and battery, attempted
breaking and entering and possession of burglary tools, shoplifting, transporting
alcohol unlawfully, enticing a child under 16 and accosting a person of the
opposite sex, and illegal re-entry into the United States. Because he found that Mr.
Vaclavik had been previously deported after a felony conviction, the probation
officer applied a four-level increase in the base level sentence pursuant to U.S.S.G.
§ 2L1.2(b)(1)(D).

That felony conviction was Mr. Vaclavik’s Massachusetts

conviction for assault and battery. Mr. Vaclavik objected to this conviction being
classified as a felony, because it was a misdemeanor under Massachusetts law,
even though it was punishable by up to 2.5 years imprisonment.
II
We review the district court’s denial of a motion to withdraw a guilty plea
for an abuse of discretion. United States v. Brehm, 442 F.3d 1291, 1298 (11th Cir.
2006).

An abuse of discretion only occurs if the district court’s denial was

“arbitrary or unreasonable.” Id.
A district court’s refusal to hold an evidentiary hearing is also reviewed for
abuse of discretion. Id. “It does not amount to abuse of discretion when a court
has conducted extensive Rule 11 inquiries prior to accepting the guilty plea.” Id.

3

Case: 15-13725

Date Filed: 04/06/2016

Page: 4 of 6

Prior to its acceptance by the court, a defendant may withdraw his guilty
plea “for any reason or no reason.” Fed. R. Crim. P. 11(d)(1). After the district
court has accepted a defendant’s guilty plea, but before sentencing, the defendant
may withdraw a guilty plea if the district court rejects the plea agreement or “the
defendant can show a fair and just reason for requesting the withdrawal.” Fed. R.
Crim. P. 11(d)(2)(A)-(B).
In determining whether a defendant has met his burden to show a “fair and
just reason” to withdraw a plea, a district court may consider the totality of the
circumstances surrounding the plea, including whether close assistance of counsel
was available, whether the plea was knowing and voluntary, whether judicial
resources would be conserved, and whether the government would be prejudiced if
the defendant were permitted to withdraw his plea. See United States v. Buckles,
843 F.2d 469, 471-72 (11thd Cir. 1988). Here the district court found that Mr.
Vaclavik had the close assistance of counsel and pled guilty knowingly and
voluntarily. See United States v. Gonzalez-Mercado, 808 F.2d 796, 801 (11th Cir.
1987).
The district court did not abuse its discretion in denying Mr. Vaclavik’s
motion to withdraw the guilty plea.

As noted, Mr. Vaclavik had the close

assistance of counsel, and his guilty plea was knowing and voluntary. See Buckles,
843 F.2d at 471-72. Additionally, judicial resources would not be conserved if Mr.
4

Case: 15-13725

Date Filed: 04/06/2016

Page: 5 of 6

Vaclavik were permitted to withdraw his plea because the district court would have
to hold a trial, expending judicial resources rather than conserving them. See Id. at
474. Finally, the government would be prejudiced by having to reconvene and
expend time and resources to try the case. See Id. Based on the Buckles factors,
viewed in combination with a totality of the circumstances, the district court acted
within its discretion in denying Mr. Vaclavik’s motion to withdraw the guilty plea.
Additionally, the district court did not abuse its discretion in refusing to hold an
evidentiary hearing because it made extensive Rule 11 inquiries prior to accepting
Mr. Vaclavik’s guilty plea. See Brehm, 442 F.3d at 1298.
III
We review de novo the district court’s interpretation and application of the
Sentencing Guidelines. United States v. Gibson, 434 F.3d 1234, 1243 (11th Cir.
2006). Mr. Vaclavik asserts that the district court erred in enhancing his sentence
due to a prior felony conviction because his conviction for misdemeanor assault
and disorderly conduct constituted a misdemeanor in Massachusetts.

The

government responds that, although this conviction is a misdemeanor under
Massachusetts law, it was punishable by a term of imprisonment up to 2.5 years,
and therefore qualifies as a felony under § 2L1.2 of the Sentencing Guidelines.
We have not ruled directly on this point, but other circuits have held that, for
the purposes of sentencing pursuant to a conviction related to illegal reentry into
5

Case: 15-13725

Date Filed: 04/06/2016

Page: 6 of 6

the United States, a state offense classified as a misdemeanor may constitute a
felony for federal sentencing purposes based on the maximum term of
imprisonment. See United States v. Savillon-Matute, 636 F.3d 119, 122 n.5 (4th
Cir. 2011) (describing the definition of felony under 8 U.S.C. § 1326(b)(1) as “an
offense punishable by a maximum term of imprisonment of more than one year”)
(internal citations omitted); United States v. Simo-Lopez, 471 F.3d 249, 252 (1st
Cir. 2006) (noting that the statutory maximum determines a crime’s status as a
felony under U.S.S.G. § 2L1.2(b)(1)(D)).
Here, Mr. Vaclavik’s prior Massachusetts conviction for assault and battery
was properly classified as a felony under U.S.S.G. § 2L1.2(b)(1)(D) based on the
maximum term of imprisonment. Given that this conviction was properly deemed
a felony, the application of a four-level increase was appropriate.
IV
We affirm Mr. Vaclavik’s conviction and sentence.
AFFIRMED.

6