USA v. Sarah Carter

Filing

Opinion issued by court as to Appellant Sarah Carter. 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.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11863
Non-Argument Calendar
________________________
D.C. Docket No. 7:14-cr-00048-HL-TQL-10

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SARAH CARTER,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(April 26, 2017)
Before TJOFLAT, WILLIAM PRYOR, and JORDAN, Circuit Judges.
PER CURIAM:

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Sarah Carter appeals her conviction for one count of conspiracy to possess
with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 846
and 841(a)(1), (b)(1)(B). She argues that the district court abused its discretion in
denying her motion to withdraw her guilty plea and her motion to rescind the plea
agreement.

She also argues that her interim counsel provided ineffective

assistance and that the district court improperly commented on her plea agreement
in violation of the Federal Rules of Criminal Procedure.
I
A federal grand jury returned an indictment against Ms. Carter and 12
codefendants for a series of drug-related offenses. Ms. Carter pled guilty to a
superseding information of one count of conspiracy to possess with intent to
distribute cocaine and cocaine base. She stipulated that she conspired with her
family to distribute cocaine and that her home was used for manufacturing and
distributing cocaine base, among other criminal acts.
Initially Ms. Carter was represented by the federal public defender’s office.
But Ms. Carter then retained Kimberly Copeland, who served as counsel until she
was suspended from the practice of law for six months. During that interim period,
James Hardin, one of Ms. Copeland’s colleagues, entered his appearance as
counsel for Ms. Carter.

Mr. Hardin represented her during the plea process

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relevant to this appeal.

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Ms. Copeland reentered her appearance and joined

Mr. Hardin in Ms. Carter’s representation a few months after her reinstatement.
Ms. Carter signed her plea agreement on October 1, 2015. The agreement
stated, in part, that Ms. Carter was subject to a sentence of between 5 and 40 years’
imprisonment. The government agreed to dismiss three other charges against
Ms. Carter and to submit motions to reduce her sentence if she provided substantial
assistance. The plea agreement, however, stated contradictory amounts of cocaine
attributable to Ms. Carter. In one section of the plea agreement, the amount of
cocaine attributed to Ms. Carter was a range of 5 kilograms to 15 kilograms, while
in a later section, 50 kilograms to 150 kilograms were attributed to her.
At her change of plea hearing, the district court confirmed that Ms. Carter
understood the nature of her offense and the possible sentence she could receive.
She affirmed that she had read the plea agreement, she had not been coerced to
plead guilty, and her plea was entered into freely and voluntarily. She also said she
understood that she could not rely on any sentence estimate provided to her, that
her attorney had explained the range of penalties, and the district court could
sentence her to any sentence within the statute’s range, which was 5 years’ to 40
years’ imprisonment. The final PSI suggested an imprisonment range of 235 to
293 months based in part on a drug quantity of 50 to 150 kilograms of cocaine.

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On February 24, 2016, before sentencing, Ms. Carter filed a motion to
withdraw her guilty plea.

She alleged that she did not enter into her plea

knowingly and voluntarily (a) because she believed she was entering into a plea
agreement that would result in a 5-year sentence due to her counsel’s explanation
of the plea agreement, and (b) because she did not receive a copy of the plea
agreement before the plea colloquy.
The parties appeared at a hearing the next day. The district court heard from
Ms. Copeland, Mr. Hardin, and the government. Mr. Hardin told the district court
that he arrived an hour before the plea hearing to explain the plea agreement to
Ms. Carter and her family, and to explain the plea colloquy process. He also told
the district court that Ms. Carter did not seem confused.
The district court asked Ms. Copeland whether Ms. Carter was aware of the
consequences of withdrawing her plea. Specifically, it asked if she was aware that
she was putting herself in jeopardy of serving a 25-year sentence or a life term of
imprisonment instead of serving “12 as things stand now” and that the government
did not have to negotiate with her once the plea was withdrawn. See D.E. 499 at
41–42. Upon hearing “for the first time” that Ms. Carter could receive a 12-year
sentence from the district court, Ms. Carter withdrew her motion and objections to
the presentence investigation report. Id. at 12.

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At the end of the hearing, and after hearing from Ms. Carter, the district
court said that it believed that the case had been mishandled “from first to last,”
that it wanted Ms. Carter to make her decision whether to plead guilty “freely and
intelligently,” and that it was “not satisfied she’d had good advice.” Id. at 54. It
then decided it would appoint new counsel for Ms. Carter.
At the next hearing on March 23, 2016, the district court informed the
parties that it could not appoint new counsel (because Ms. Carter had retained
counsel), and Ms. Copeland orally resubmitted Ms. Carter’s motion to withdraw
her guilty plea. The district court heard from Ms. Copeland, Mr. Hardin, and the
government. Mr. Hardin stated that he went over the plea agreement “line by line”
and that Ms. Copeland was privy to his decisions. The government argued that, as
a result of Mr. Hardin’s efforts, it had dismissed three charges and Ms. Carter was
no longer subject to certain statutory penalties. The district court did not decide on
the motion during this hearing and gave Ms. Copeland two weeks to prepare
further.
On April 11, 2016, Ms. Carter filed a motion to rescind the plea agreement,
arguing that there was no meeting of the minds, that the plea agreement contained
mistakes and ambiguities that misled her into believing she was agreeing to a 5year sentence, and that the government should have to specifically perform the

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agreement. The motion also included an argument that Mr. Hardin provided
ineffective assistance of counsel.1
On April 13, 2016, the district court held another hearing where it heard
from Ms. Copeland, Mr. Hardin, and the government about the plea process and
the pending motions. Mr. Hardin testified that he spoke to Ms. Carter on the phone
about the plea agreement, explained the correct cocaine amounts to her even
though the plea agreement referenced an improper range, and had told her to tell
the district court if she was confused during the colloquy. The government agreed
with Mr. Hardin that the reference to the improper cocaine range in the agreement
was a typographical error.
At the hearing, the district court denied both of Ms. Carter’s motions and
found that Mr. Hardin did not provide ineffective assistance. It found that the
agreement did not state that Ms. Carter would receive a 5-year sentence; there was
no evidence to contradict that the parties negotiated a cocaine range of 50 to 150
kilograms; and there was no evidence that Ms. Carter’s testimony at her plea
colloquy was tainted by Mr. Hardin’s representation and advice. The district court

1

Ms. Carter claimed that: (1) the phrase “a maximum sentence of not less than five (5) years
imprisonment” could reasonably be interpreted to mean the sentence could not exceed five years;
(2) the government’s dismissal of three counts against Ms. Carter was an illusory promise
because the charging document only included one count; and, (3) there was confusion about
whether Ms. Carter pled guilty with relation to 5 to 15 kilograms or 50 to 150 kilograms of
cocaine, which resulted in a difference in base level offense calculations. These are the same
arguments raised on appeal.
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then sentenced Ms. Carter to 155 months’ imprisonment, 5 years of supervised
release, and a $100 assessment.
II
Ms. Carter raises four arguments on appeal: (1) the district court abused its
discretion in denying her motion to withdraw her guilty plea; (2) the district court
abused its discretion in denying her motion to rescind her plea agreement; (3) she
received ineffective assistance of counsel; and (4) the district court improperly
commented on the plea agreement.
A
Ms. Carter first argues the district court abused its discretion in denying her
motion to withdraw the plea because her plea was not knowing and voluntary due
to her counsel’s ineffectiveness. She concedes that she was not coerced to enter
the plea, that the district court completed a sufficient plea colloquy under Rule 11,
and that her answers at the plea colloquy are presumed truthful. She argues,
however, that she was misled by Mr. Hardin to believe she would receive a 5-year
sentence and that her request for a copy of her plea agreement weeks after entering
her plea was an indication of her confusion. She also argues that the government
would not be prejudiced by withdrawal and that more judicial resources would be
spent if she were to bring an ineffective assistance of counsel claim under 28
U.S.C. § 2255.
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We review Ms. Carter’s challenge to the district court’s denial of her motion
to withdraw a guilty plea for abuse of discretion. See United States v. Freixas, 332
F.3d 1314, 1316 (11th Cir. 2003). We will reverse only if the district court’s
decision was arbitrary or unreasonable. See id. at 1318.
A defendant may withdraw her guilty plea after the court accepts the plea,
but before a sentence is imposed, if she “can show a fair and just reason for
requesting the withdrawal.” See Fed. R. Crim. P. 11(d)(2)(B). The defendant has
the burden of showing a “fair and just reason” for withdrawal, and does not have
an absolute right to withdraw a guilty plea prior to the imposition of a sentence.
United States v. Buckles, 843 F.2d 469, 471 (11th Cir. 1988).

The credibility and

weight of a defendant’s assertions in support of a motion to withdraw a guilty plea
are for the district court to decide. See id. at 472.
In determining whether a defendant has met his or her burden, a district
court may consider the totality of circumstances and particular factors, such as (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 would be allowed to
withdraw the plea. See id. at 471–72. A “swift change of heart” is a strong
indication that a plea was entered in “haste and confusion.” See United States v.
Gonzalez-Mercado, 808 F.2d 796, 801 (11th Cir. 1987) (internal citations omitted).
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We conclude that the district court did not abuse its discretion in denying
Ms. Carter’s motion to withdraw her guilty plea. Although there was no evidence
offered to refute Ms. Carter’s contention that she did not receive a copy of her plea
agreement before the plea colloquy, Ms. Carter stated under oath in open court that
she understood the plea agreement, had read “every word” of it, and most
importantly, that she understood the range of penalties she was facing. There is a
strong presumption that the responses she gave at the plea colloquy were truthful.
See United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). At no point
during the plea colloquy did she say she thought she would receive a 5-year
sentence, and although we recognize the immense pressure a defendant faces when
entering a guilty plea, we cannot ignore Ms. Carter’s own testimony that she
recognized that she could not rely on any estimate provided to her. See United
States v. Pease, 240 F.3d 938, 941 (11th Cir. 2001) (holding that the district court
did not abuse its discretion when it denied the defendant’s motion to withdraw his
guilty plea even though the defendant thought he would receive a different
sentence based on his attorney’s erroneous estimate).
The district court held multiple hearings on Ms. Carter’s motion, reviewed
the evidence presented, and heard from all parties involved. Although the district
court stated that it was concerned about the performance of counsel, it ultimately
found that Ms. Carter knowingly and voluntarily entered into her plea. Based on
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the record below and the parties’ briefs, we affirm the district court’s denial of
Ms. Carter’s motion to withdraw her guilty plea.
B
Ms. Carter’s second argument is that the district court abused its discretion
when it denied the motion to rescind the plea agreement. Ms. Carter contends that
there was no “meeting of the minds,” but the record indicates that the errors in the
plea agreement did not mislead Ms. Carter into entering into the agreement. For
example, it was only after Ms. Copeland reentered her appearance and noticed the
typographical errors that she raised them as a possible reason for Ms. Carter’s
confusion. The district court, moreover, explained the proper sentence range to
Ms. Carter and she agreed that she understood it, despite the typographical errors
about drug quantity that were present in the agreement. Although we recognize
that the plea agreement is unartfully drafted, the record below reflects that the
parties understood the agreement’s contents as to statutory penalties and that
Ms. Carter did not express any confusion based on the typographical errors to the
district court during her plea colloquy.
More importantly, although we agree with Ms. Carter that plea agreements
can be interpreted like contracts, see United States v. Jeffries, 908 F.2d 1520, 1523
(11th Cir. 1990), Ms. Carter does not really want the plea agreement rescinded.
Rescission is “a party’s unilateral unmaking of a contract for a legally sufficient
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See Black’s Law Dictionary 1499 (10th Ed. 2009) (defining the term

“rescission”). Ms. Carter says as much in her brief. See Appellant’s Br. at 19 (“A
rescission would not place the parties in the position they would have been had
there been no contract.”). Instead, Ms. Carter would like us to interpret the plea
agreement to her benefit. See Appellant’s Br. at 19, 31. We, however, decline her
invitation to do so. We cannot modify the plea agreement entered by the parties to
reflect terms that were not agreed upon, and the district court did not err in
deciding not to do so. Cf. United States v. Howle, 166 F.3d 1166, 1168 (11th Cir.
1999) (stating, in a case where the plea agreement was previously accepted by the
district court, that the “modification of the terms of a plea agreement [was] . . .
beyond the power of the district court.”). 2
C
Ms. Carter’s next argument is that her counsel, Mr. Hardin, was ineffective
because he did not communicate with her sufficiently and did not understand the
plea agreement. She says that he did not visit her while he represented her, advised
her regarding her plea agreement only one hour before the plea hearing, told her
she would receive a 5-year sentence, and did not share the PSI or plea agreement
with her.3

2

Ms. Carter’s subsidiary arguments do not support a request for rescission either.
Ms. Carter mentions that the objections Mr. Hardin raised to the PSI were rejected by the
probation office because they related to facts Ms. Carter already stipulated to. See Appellant’s
3

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We review Ms. Carter’s ineffective assistance of counsel claim de novo. See
Freixas, 332 F.3d at 1316. Although we usually review ineffective assistance of
counsel claims on collateral review, the record below is sufficiently developed for
our review on direct appeal. See id. at 1319 n.3.
To successfully prove ineffective assistance of counsel, a defendant must
show that (1) his or her counsel’s performance was deficient, and (2) the deficient
performance prejudiced his or her defense. See Strickland v. Washington, 466 U.S.
668, 687 (1984). There is a strong presumption that counsel provided adequate
assistance and made all significant decisions in the exercise of reasonable
professional conduct.

See id. at 690.

To make a showing of deficiency, a

defendant must show that counsel made “errors so serious that [he] was not
functioning as the ‘counsel’ guaranteed to the defendant by the Sixth
Amendment.” Id. at 687. Prejudice is demonstrated when there is a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. In a case involving a guilty
plea, the defendant must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pled guilty and would have insisted on going
to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985). We do not need to address

Br. at 23–24. It is unclear whether this is being cited as another alleged reason for Mr. Hardin’s
ineffectiveness, but because all objections to the PSI were ultimately withdrawn, we consider
this argument moot.
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both prongs if we find that Ms. Carter made an insufficient showing on one. See
Strickland, 466 U.S. at 697.
Ms. Carter does not offer any reason to upset the district court’s conclusion
that she did not receive ineffective assistance. Although the district court may
have expressed frustration with Ms. Copeland’s performance, and although
Mr. Hardin could have theoretically spent more time with Ms. Carter, it heard
testimony from Mr. Hardin and Ms. Carter, reviewed the evidence provided by
Ms. Carter, and ultimately found that Ms. Carter could not demonstrate that she
received ineffective assistance from Mr. Hardin. We also note that, during the plea
colloquy, Ms. Carter expressed that she was satisfied with the counsel she received
and that Mr. Hardin had reviewed the plea agreement with her. Ms. Carter cannot
now blame Mr. Hardin for allegedly misleading her when the district court asked
her if she understood the parameters of her plea agreement and she answered in the
affirmative.
D
Ms. Carter’s final argument is that the district court committed plain error by
referring to the possibility of serving 25 years or life in prison if she withdrew her
plea in violation of Rule 11. Ms. Carter argues that that these comments “shook
[her] to her very core,” and were the motivation behind her decision to proceed
with sentencing. See Appellant’s Br. at 29.
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Rule 11(c)(1) prohibits a district court from participating in plea agreement
discussions. When a defendant fails to object to an alleged violation of Rule
11(c)(1), we review for plain error. See United States v. Castro, 736 F.3d 1308,
1313 (11th Cir. 2013).

That is the case here because Ms. Carter did not object

below. Plain error occurs when the district court commits an error that is “plain,
affects the defendant’s substantial rights, and seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. (internal quotation
marks omitted). We evaluate the district court’s comments in light of the full
record. Id. Ms. Carter has to prove that but for the district court’s remarks, she
would have gone to trial. See id.
Here, the district court did not commit plain error by clarifying with counsel
that Ms. Carter understood the risks associated with withdrawing her guilty plea.
The statements were made after Ms. Carter decided to plead guilty and completed
her plea colloquy. Although the district court mentioned the sentence it was
contemplating for the first time, it did not interfere or attempt to manage plea
discussions post hoc. Ms. Carter, moreover, tells us on appeal that she “still
desires to enter a guilty plea.” See Appellant’s Br. at 19. Thus, in light of the
record, Ms. Carter has failed to prove she would have proceeded to trial but for the
district court’s comments.

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IV
For all of the reasons cited above, we affirm the district court’s denials of
Ms. Carter’s motion to withdraw her guilty plea and motion to rescind the plea
agreement. We also conclude that Ms. Carter did not receive ineffective assistance
of counsel and the district court’s comments did not constitute plain error under
Rule 11.
AFFIRMED.

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