[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-10395

Non-Argument Calendar

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D.C. Docket No. 1:15-cr-20531-UU-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

STEPHEN TELEMAQUE, 

a.k.a. TMAC, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(July 11, 2017)

Before TJOFLAT, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM: 

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Stephen Telemaque appeals his conviction for conspiracy to possess with 

intent to distribute a detectable amount of ethylone. On appeal, he argues that the 

district court abused its discretion in denying his motion to withdraw his guilty 

plea.

1

 He argues that his plea was not voluntary because he would not have 

entered it absent the mistaken advice from counsel that the proper ethylone-tomarijuana volume conversion ratio used in sentencing calculations was 1:500. 

Upon review of the record and the parties’ briefs, we affirm Telemaque’s 

conviction.

We review the district court’s denial of a motion to withdraw a guilty plea 

for an abuse of discretion. United States v. Symington, 781 F.3d 1308, 1312 (11th 

Cir. 2015). A district court abuses its discretion if it fails to apply the proper legal 

standard or to follow proper procedures in making the determination, if it makes 

findings of fact that are clearly erroneous, or if the denial is arbitrary or 

unreasonable. United States v. Izquierdo, 448 F.3d 1269, 1276 (11th Cir. 2006). 

There is no absolute right to withdraw a guilty plea prior to imposition of a 

sentence, and the decision of whether to permit withdrawal is left to the sound 

discretion of the district court. United States v. Buckles, 843 F.2d 469, 471 (11th 

Cir. 1988). Defendants seeking to withdraw a guilty plea after its acceptance but 

 1 Other issues raised on appeal by Telemaque have been dismissed in a previous order of 

this Court based on the sentence appeal waiver.

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prior to sentencing must show that there is a “fair and just reason” for doing so. 

Fed. R. Crim. P. 11(d)(2)(B). 

In determining whether a defendant has met his burden to show a “fair and 

just reason” to withdraw a guilty plea, a district court may consider the totality of 

the circumstances surrounding the plea, including 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. Buckles, 843 F.2d at 471-72. If an 

appellant does not satisfy the first two factors of the Buckles analysis, we need not 

thoroughly analyze the remaining factors. See United States v. Gonzalez-Mercado, 

808 F.2d 796, 801 (11th Cir. 1987) (affirming a district court’s denial of a motion 

to withdraw a guilty plea based on the first two factors, but declining to give 

“considerable weight” to the third factor or “particular attention” to the possibility 

of prejudice to the government). 

The good faith, credibility, and weight of a defendant’s assertions in support 

of a motion to withdraw a guilty plea are issues for the trial court to decide. United 

States v. Brehm, 442 F.3d 1291, 1298 (11th Cir. 2006). Statements made under 

oath by a defendant during a plea colloquy receive a strong presumption of 

truthfulness. United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994). 

Consequently, a defendant bears a heavy burden to show that his statements under 

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oath were false. United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988). The 

timing of an appellant’s motion to withdraw a plea also deserves consideration, as 

it may be indicative of the defendant’s motivation. Gonzalez-Mercado, 808 F.2d at 

801. A swift change of heart is a strong indication that the plea was entered in 

haste and confusion. Id. To grant a motion to withdraw simply because a 

defendant is wary of a harsher-than-contemplated sentence would be to permit the 

defendant to use the guilty plea as a means of testing the weight of a potential 

sentence, which is a primary ground for denying plea changes. Id. 

In assessing whether close assistance of counsel was available through plea 

proceedings, we examine whether counsel was available and utilized. See United 

States v. McCarty, 99 F.3d 383, 385 (11th Cir. 1996) (finding no abuse of 

discretion where the district court, after hearing testimony regarding the 

defendant’s allegedly involuntary guilty plea, concluded that he had been ably and 

professionally represented and that close assistance of counsel was available and 

utilized extensively). 

Under Rule 11, before a court can accept a guilty plea, it must inform the 

defendant of his rights should he plead not guilty, the nature of the charges against 

him, the potential penalties, the court’s obligation to calculate his advisory 

guideline range, and the terms of any sentence appeal waiver in the plea 

agreement. See Fed. R. Crim. P. 11(b)(1)(B)-(E), (G)-(N). The court must also 

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explain that a guilty plea waives the defendant’s trial rights and ensure that the plea 

is entered voluntarily and is supported by a sufficient factual basis. See id. 

(b)(1)(F), (b)(2)-(3). Further, the court must explain that the defendant can be 

prosecuted for perjury for testifying falsely under oath. See Fed. R. Crim. P. 

11(b)(1)(A). Rule 11 does not require uncontroverted evidence of guilt. United 

States v. Owen, 858 F.2d 1514, 1516–17 (11th Cir. 1988). Instead, Rule 11 

requires “evidence from which a court could reasonably find that the defendant 

was guilty.” Id. at 1517. 

We have affirmed the denial of a motion to withdraw a guilty plea based on 

a defendant’s contention that he relied on his attorney’s underestimation of his 

potential sentence under a plea agreement where the defendant was informed of the 

applicable minimum and maximum penalties, that he could not rely on his 

counsel’s prediction, and that the sentence actually imposed by the court could 

differ from any estimate the defendant received from anyone, including his 

attorney. United States v. Pease, 240 F.3d 938, 940-41 (11th Cir. 2001). We have

also held that a district court abused its discretion in denying a defendant’s motion 

to withdraw a guilty plea that was based on incorrect statements in the plea 

agreement that his prior convictions did not qualify as predicate offenses for 

purposes of an enhanced sentence under the Armed Career Criminal Act and that 

he faced a maximum penalty of ten years’ imprisonment. Symington, 781 F.3d at 

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1310, 1314. In addition, we noted that the Symington district court twice 

erroneously stated that it could sentence the defendant to a maximum of ten years’ 

imprisonment, and thus did not comply with Rule 11’s requirement to inform the 

defendant of the possible maximum penalty of life imprisonment and the 

mandatory minimum penalty of 15 years’ imprisonment that he would be subjected 

to by pleading guilty. Id. 

Here, the district court did not abuse its discretion in denying Telemaque’s 

motion to withdraw his guilty plea. First, Telemaque had the close assistance of 

counsel because counsel was appointed before the superseding indictment was 

returned, and counsel advised Telemaque about the charges against him, the 

advisory sentencing guidelines, his plea agreement, and other matters about the

case to Telemaque’s satisfaction. That Telemaque’s counsel did not advise him of 

the possibility of an ethylene conversion ratio of 1:250, based on a district court 

case that had not yet been published before Telemaque entered his plea, did not 

demonstrate that he lacked the close assistance of counsel. 

Second, Telemaque does not contend that the district court made any Rule 

11 errors and never stated that he would not have pled guilty but for his counsel’s

allegedly defective advice about the ethylene conversion ratio. Dominguez 

Benitez, 542 U.S. at 83. Telemaque has not shown that his affirmations at the plea 

colloquy that he understood the terms of the plea agreement, that the court could 

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impose a sentence more severe than the guidelines called for, and that he could not 

withdraw his plea if the sentence was more severe than he expected were false. 

Rogers, 848 F.2d at 168. Moreover, at sentencing, the district court released 

Telemaque from the plea agreement provision requiring that he recommend a 151-

month sentence, which was the primary reason Telemaque gave for wanting to 

withdraw his plea. And the district court calculated a lower guideline range based 

on a 1:380 conversion ratio, and heard Telemaque’s argument that he should 

receive a lower sentence. Monroe, 353 F.3d at 1350-52; Pease, 240 F.3d at 941. 

Because Telemaque’s plea was knowing and voluntary and he had the close 

assistance of counsel, we need not thoroughly analyze the remaining factors. See 

Gonzalez-Mercado, 808 F.2d at 801. 

AFFIRMED.

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