           Case: 18-15087   Date Filed: 02/26/2020   Page: 1 of 11


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-15087
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 0:18-cr-60127-WPD-1



UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,

                                   versus

TRENARD CALDWELL,

                                                        Defendant - Appellant.

                       ________________________

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

                            (February 26, 2020)



Before GRANT, LUCK and BLACK, Circuit Judges.

PER CURIAM:
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      Trenard Caldwell appeals his convictions and 161-month total sentence for

being a felon in possession of a firearm, possession of unauthorized access devices,

aggravated identity theft, and possession of a detectable amount of

methamphetamine with intent to distribute. Caldwell asserts five issues on appeal,

which we address in turn. After review, we reverse and remand to allow the

district court to modify Caldwell’s sentence so it does not run afoul of the statutory

maximum, but affirm as to all other issues.

                                  I. DISCUSSION

A. Motion to Withdraw Guilty Plea

      First, Caldwell contends the district court abused its discretion when it did

not allow him to withdraw his guilty plea because he did not have close assistance

of counsel when he entered the plea and his plea was not knowing and voluntary.

After the district court accepts the plea and before sentencing, the defendant may

withdraw a guilty plea if (1) the district court rejects the plea agreement, or (2) “the

defendant can show a fair and just reason for requesting the withdrawal.” Fed. R.

Crim. P. 11(d)(2)(A)-(B). “There is no absolute right to withdraw a guilty plea.”

United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). In determining if the

defendant has met his burden, a district court may consider the totality of the

circumstances surrounding the plea, including the following factors: “(1) whether

close assistance of counsel was available; (2) whether the plea was knowing and


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voluntary; (3) whether judicial resources would be conserved . . . ; and (4) whether

the government would be prejudiced if the defendant were allowed to withdraw his

plea.” United States v. Buckles, 843 F.2d 469, 472 (11th Cir. 1998) (citation

omitted). The good faith, credibility, and weight of the defendant’s representations

in support of the motion to withdraw are issues for the trial court to decide. Id.

      The district court held a hearing on Caldwell’s motion to withdraw his guilty

plea in which both Caldwell and his attorney testified. After hearing the testimony,

the district court denied the motion, finding that when Caldwell pled guilty, he

understood and confirmed that (1) he would not be allowed to withdraw his plea,

(2) he did not have to follow his attorney’s advice, (3) he wanted to plead guilty

and give up all defenses, (4) no threats or promises were made to him, and (5) he

fully understood what he was doing and had no questions.

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

to withdraw his guilty plea because he failed to show that he did not have close

assistance of counsel and the evidence supports that his plea was knowing and

voluntary. See United States v. McCarty, 99 F.3d 383, 385 (11th Cir. 1996)

(stating we will disturb the district court’s decision to deny a defendant’s motion to

withdraw a guilty plea only when it constitutes an abuse of discretion).

      The district court found Caldwell’s attorney, Richard Merlino, credible

during the hearing on Caldwell’s motion. During that hearing, Merlino testified


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that he had met with Caldwell four to six times and his investigator had met with

Caldwell six to eight times in preparation for trial. Merlino testified that he

reviewed the discovery with Caldwell and they had discussed that the Government

had a “reasonable likelihood of conviction” if the case proceeded to trial.

      In addition, both the district court’s plea colloquy and the testimony at the

hearing on the motion to withdraw establish Caldwell knowingly and voluntarily

entered his plea. See Medlock, 12 F.3d at 187 (stating there is a strong

presumption that statements made during the plea colloquy are true). The district

court confirmed Merlino explained the Sentencing Guidelines to Caldwell, that

Caldwell agreed with the strategy of an open plea, and that Caldwell understood

the maximum amount of prison time he could serve. Moreover, the district court

confirmed that Caldwell’s plea was done freely and voluntarily and that he

understood that he could not come back to the district court and argue that he did

not understand, made a mistake, or that his lawyer provided him with bad advice.

Caldwell failed to meet the heavy burden of showing the statements he made,

under oath, during his change or plea hearing were false. See United States v.

Rogers, 848 F.2d 166, 168 (11th Cir. 1988) (explaining a defendant bears a heavy

burden to show that his statements under oath were false). The final two Buckles

factors also weigh against the withdrawal of the plea, and Caldwell concedes that

whether judicial resources would be conserved weighs against him.


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B. Ineffective Assistance of Counsel

      Second, Caldwell asserts he received ineffective assistance of counsel. To

make a successful claim of ineffective assistance of counsel, a defendant must

show both that (1) his counsel’s performance was deficient; and (2) the deficient

performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687

(1984). Failure to establish either prong is fatal and makes it unnecessary to

consider the other. Id. at 697. A counsel’s performance is measured under an

objective standard of reasonableness, and there is a strong presumption that

counsel’s conduct falls within the range of reasonable performance. Id. at 687,

690. Prejudice occurs 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. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id.

      As an initial matter, the record is sufficiently developed to permit this Court

to consider Caldwell’s ineffective assistance of counsel claim. See United States v.

Bender, 290 F.3d 1279, 1284 (11th Cir. 2002) (explaining while we generally do

not consider claims of ineffective assistance of counsel raised on direct appeal, we

will do so if the record is sufficiently developed). Caldwell raised the claim in his

amended motion to withdraw his guilty plea, and the district court held an

evidentiary hearing where Caldwell and Merlino testified regarding the issue.


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      Caldwell has failed to establish the district court erred when it denied his

ineffective assistance of counsel claim. See id. (stating whether a criminal

defendant’s trial counsel was ineffective is a mixed question of law and fact,

subject to de novo review). Merlino testified that he reviewed the discovery, went

through the evidence with Caldwell, attempted to contact witnesses, and found he

could not file a motion to suppress in good faith. In addition, Merlino testified he

spoke with Caldwell about entering the guilty plea and the consequences of

entering a guilty plea. Caldwell has failed to present evidence to show the

likelihood of the district court allowing him to withdraw his guilty plea would have

increased had Merlino taken different actions. See Harrington v. Richter, 562 U.S.

86, 112 (2011) (the petitioner must show the likelihood of a different result is

substantial). Thus, Caldwell has failed to establish that Merlino acted deficiently

or that Merlino’s actions prejudiced his defense. See Strickland, 466 U.S. at 687.

C. Criminal History Calculation

      Third, Caldwell argues the district court erred at sentencing when it assessed

him a criminal history point for a previous grand theft of a motor vehicle

conviction, because that conviction was part of the relevant conduct of his current

charges. The district court is required to assess one criminal history point for each

“prior sentence” of less than 60 days of imprisonment. U.S.S.G. § 4A1.1(c). The

term “prior sentence” means “any sentence previously imposed upon adjudication


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of guilt . . . for conduct not part of the instant offense.” U.S.S.G. § 4A1.2(a)(1).

Relevant conduct includes “all acts and omissions committed . . . by the defendant

. . . that occurred during the commission of the offense of conviction, in

preparation for that offense, or in the course of attempting to avoid detection or

responsibility for that offense.” U.S.S.G. § 1B1.3(a)(1)(A).

      The district court did not clearly err when it assessed one criminal history

point to Caldwell for the grand theft of a motor vehicle. See United States v.

Kinard, 472 F.3d 1294, 1297 n.3 (11th Cir. 2006) (stating a district court’s factual

findings are reviewed for clear error and its application of the Guidelines to those

facts are reviewed de novo). The district court found the grand theft of the motor

vehicle was not part of the relevant conduct of this case because it was a separate

crime and it occurred on a separate date from the convictions in this case. In

addition, the grand theft of the motor vehicle did not occur during the commission

of the offenses in this case and was not done in order to avoid detection or

responsibility for those offenses. Thus, under the Guidelines, it is not relevant

conduct, and the district court did not clearly err when it assessed Caldwell one

criminal history point. U.S.S.G. § 1B1.3(a)(1)(A).

D. Sentence Greater than Statutory Maximum

      Fourth, Caldwell asserts the district court erred when it imposed a 161-

month total sentence which was greater than the maximum statutory sentence


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permitted. The district court sentenced Caldwell at the high end of his Guidelines

range, 137 months’ imprisonment on Counts 1, 2, 4, and 5, to run concurrently.

The district court further sentenced Caldwell to 24 months’ imprisonment on

Count 3, to run consecutively. Caldwell contends the maximum prison sentence

permitted by law on Counts 1, 2, and 5 1 is 120 months’ imprisonment. See 18

U.S.C. § 924(a)(2) (Count 1); 18 U.S.C. § 1029(c)(1)(A)(i) (Counts 2 and 5).

       The Government concedes that Caldwell correctly argues the district court

erred when it imposed a 137-month sentence as to Counts 1, 2, and 5. The

Government contends the district court should have structured the sentence by

imposing concurrent terms of 120 months’ imprisonment as to Counts 1, 2, and 5,

and a 137-month sentence for Count 4, which carries a statutory maximum of 240

months. See 21 U.S.C. § 841(b)(1)(C).

       We have held that Federal Rule of Criminal Procedure 36 “may not be used

to make a substantive alteration to a criminal sentence.” United States v. Portillo,

363 F.3d 1161, 1164 (11th Cir. 2004) (quotations omitted). In addition, we have

held that Rule 36 permits courts to “correct an error in the record arising from [an]

oversight. Id. at 1165.


       1
          Caldwell’s counts of conviction are as follows: Count 1—possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g)(1); Count 2—possession of unauthorized
access devices, in violation of 18 U.S.C. § 1029(a)(3); Count 3—aggravated identity theft, in
violation of 18 U.S.C. § 1028A(a)(1); Count 4—possession of methamphetamine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1); and Count 5—possession of unauthorized access
devices, in violation of 18 U.S.C. § 1029(a)(3).
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       The district court erred in how it structured Caldwell’s sentence because it

sentenced him to 137-months’ imprisonment as to Counts 1, 2, and 5, when the

statutory maximum sentence for those counts is 120 months’ imprisonment. See

United States v. Mazarky, 499 F.3d 1246, 1248 (11th Cir. 2007) (reviewing the

legality of a sentence de novo). However, this error is one that can be corrected,

pursuant to Rule 36, as the correction will not result in a substantive alteration to

Caldwell’s sentence. See Portillo, 363 F.3d at 1164-65. The district court could

sentence Caldwell to 120-months’ imprisonment as to Counts 1, 2, and 5 to run

concurrently with a 137-month sentence as to Count 4, and an additional 24

months to run consecutively as to Count 3 for a total sentence of 161 months’

imprisonment. Allowing the district court to enter a new judgment, pursuant to

Rule 36, will allow the district court to correct an oversight in how it announced

Caldwell’s sentence, without making the sentence more onerous. See id.

E. Superseding Indictment

       Fifth, Caldwell contends Count 1 of the Superseding Indictment illegally

charged him with being a felon in possession of a firearm, in light of the Supreme

Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019).2 We review


       2
           Caldwell waived the defect in his indictment because his guilty plea waived all
nonjurisdictional defects in his proceeding. See United States v. Brown, 752 F.3d 1344, 1347
(11th Cir. 2014). He may obtain relief from his guilty plea only if he identifies a defect that
affected the power of the district court to enter its judgments. See id. at 1350-51. While Rehaif
clarified that a defendant’s knowledge of his status as a felon is an element of the offense of
being a felon in possession of a firearm, 139 S. Ct. at 2200, the omission of a mens rea element
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new challenges to indictments for plain error. United States v. Reed, 941 F.3d

1018, 1020 (11th Cir. 2019). A defendant must prove that an error occurred, that

was plain, and that affected his substantial rights. Id. at 1021. We may consult the

whole record when considering the effect of an error on a defendant’s substantial

rights. Id. “[I]n a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the

Government must prove both that the defendant knew he possessed a firearm and

that he knew he belonged to the relevant category of persons barred from

possessing a firearm.” Rehaif, 139 S. Ct. at 2200.

       Caldwell cannot show plain error occurred because he failed to show the

error affected his substantial rights. The district court specifically asked Caldwell

if he knew what a felony was and if he had previously pled guilty to a felony.

Caldwell replied in the affirmative to both questions. Thus, Caldwell cannot

establish an error occurred that affected his substantial rights because the record

establishes that he knew of his status as a felon. See Reed, 941 F.3d at 1020-22.




from an indictment does not divest the district court of subject matter jurisdiction to adjudicate a
criminal case. See Brown, 752 F.3d at 1350-51, 1353-54. Caldwell’s indictment was defective
because it failed to allege he knew he was a felon, but Caldwell waived that nonjurisdictional
defect by pleading guilty.
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                                II. CONCLUSION

      Accordingly, we reverse and remand to allow the district court to correct

Caldwell’s sentence pursuant to Rule 36, but affirm as to all other issues.

      AFFIRMED IN PART, REVERSED AND REMANDED IN PART.




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