United States v. Terell Buford , 627 F. App'x 518 ( 2015 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0675n.06
No. 14-6537
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Oct 05, 2015
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE EASTERN
TERELL BUFORD, )
DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
)
)
BEFORE: KEITH, ROGERS, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
Defendant Terell Buford pleaded guilty to possessing a firearm as a convicted felon in
violation of 18 U.S.C. § 922(g)(1). After the government informed him that it would not file a
motion for a downward departure pursuant to U.S.S.G. § 5K1.1, defendant moved to withdraw
his guilty plea. The district court denied defendant’s motion and sentenced him to 200 months’
imprisonment. He appeals the district court’s ruling that he did not have a fair and just reason
for requesting the plea withdrawal. We affirm.
I.
In response to a tip about drug distribution occurring at defendant’s retail business,
narcotics detectives with the Rhea County Sheriff’s Department executed a search warrant and
found a loaded Walther .22 caliber pistol, along with resale amounts of various narcotics.
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United States v. Buford
Defendant admitted the gun was his and that he had been distributing drugs from his store.
At the time of his arrest, defendant was acting as a confidential informant for the Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF) to “work off” prior state criminal drug
charges.
Following his indictment, defendant expressed his willingness to continue to cooperate
with law enforcement officials. In his counsel’s words, he, “with counsel decided that a course
of cooperation with the Government was the best path to take in order to get a favorable outcome
pursuant to a [U.S.S.G. §] 5K1.1 motion.” Thereafter, defendant entered into a plea agreement,
whereby he agreed to plead guilty to being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). However, the plea agreement provided that “[n]o promises have been
made by any representative of the United States to the defendant as to what the sentence will be
in this case” and that “[a]ny estimates or predictions made to the defendant by defense counsel or
any other person regarding any potential sentence in this case are not binding on the Court, and
may not be used as a basis to . . . withdraw the defendant’s guilty plea[].” The plea agreement
also provided that “[a]t the time of sentencing, the United States may bring to the Court’s
attention the nature, extent, and value of the defendant’s cooperation so that it may be considered
in determining a fair and appropriate sentence under the facts of the case.” (Emphasis added.)
Moreover, during defendant’s plea hearing, defendant denied that “any officer or agent of the
government or anyone else promised or suggested that [he] would get some other form of
leniency or a lighter sentence by pleading guilty” other than contained in his plea agreement.
Defendant’s ability to cooperate with the government and provide “substantial
assistance” is at the center of this appeal. In defendant’s view, the government deliberately
delayed and never intended to utilize defendant’s assistance. For these reasons, after reviewing
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his presentence report on August 9, 2014, and learning that a § 5K1.1 motion was not
forthcoming, defendant’s “only remedy . . . was to file the motion to withdraw his plea.”
However, defendant waited nearly another month until September 2, 2014—six days
before the scheduled sentencing hearing and ninety-eight days after he pleaded guilty—to file his
motion. Defendant’s arguments below and on appeal are essentially the following: “Had [he]
known earlier that the ATF never intended to request the 5K1.1 motion, . . . he would have
immediately moved to withdraw his plea[. M]oreover, had he known that the ATF was not
interested in his cooperation or that of the 3rd party [allegedly recruited by defendant,] he never
would [have] entered into a plea agreement from the start.” Also, defendant asserts he learned of
problems with the search warrant and indictment meriting constitutional challenge only after he
pleaded guilty.
After hearing testimony and argument, the district court denied defendant’s motion. In so
doing, the district court considered the factors set forth in United States v. Bashara, 27 F.3d 1174
(6th Cir. 1994), superseded by guidelines amendment on other grounds, U.S.S.G. § 3B1.1, and
found that all factors either weighed against granting defendant’s motion or were neutral.
Defendant then improperly moved this court for permission to file an interlocutory appeal prior
to entry of final judgment, which we denied for lack of jurisdiction. United States v. Buford, No.
14-6379 (6th Cir. Nov. 26, 2014). The district court subsequently sentenced defendant to 200
months’ imprisonment. Defendant now appeals, challenging the district court’s decision to deny
his motion to withdraw his plea.
II.
We review a district court’s decision denying a motion to withdraw a guilty plea for an
abuse of discretion. United States v. Benton, 639 F.3d 723, 726–27 (6th Cir. 2011). A district
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court abuses its discretion when it “relies on erroneous findings of fact, applies the wrong legal
standard, misapplies the correct legal standard when reaching a conclusion, or makes a clear
error of judgment.” Reeb v. Ohio Dep’t of Rehab. & Corr., 435 F.3d 639, 644 (6th Cir. 2006).
It is well-established that “[a] defendant has no right to withdraw his guilty plea.” United
States v. Martin, 668 F.3d 787, 794 (6th Cir. 2012). Instead, Federal Rule of Criminal Procedure
11 permits the withdrawal of an accepted guilty plea upon a showing of a “fair and just reason
for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). “[T]he aim of the rule is to allow
a hastily entered plea made with unsure heart and confused mind to be undone, not to allow a
defendant ‘to make a tactical decision to enter a plea, wait several weeks, and then obtain a
withdrawal if he believes that he made a bad choice in pleading guilty.’” United States v.
Alexander, 948 F.2d 1002, 1004 (6th Cir. 1991) (citation omitted). In examining this “fair and
just reason” standard, we consider the totality of the circumstances, including the following
seven factors set forth in Bashara:
(1) the amount of time that elapsed between the plea and the motion to withdraw
it; (2) the presence (or absence) of a valid reason for the failure to move for
withdrawal earlier in the proceedings; (3) whether the defendant has asserted or
maintained his innocence; (4) the circumstances underlying the entry of the guilty
plea; (5) the defendant’s nature and background; (6) the degree to which the
defendant has had prior experience with the criminal justice system; and
(7) potential prejudice to the government if the motion to withdraw is granted.
27 F.3d at 1181. “The factors are a general, non-exclusive list and no one factor is controlling.”
United States v. Bazzi, 94 F.3d 1025, 1027 (6th Cir. 1996). “The relevance of each factor will
vary according to the circumstances surrounding the original entrance of the plea as well as the
motion to withdraw.” United States v. Haygood, 549 F.3d 1049, 1052 (6th Cir. 2008) (citation
and internal quotation omitted).
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III.
Upon evaluation of each Bashara factor and the totality of the circumstances, we agree
with the district court that defendant did not present a fair and just reason for requesting the
withdrawal of his guilty plea.
The district court found that factors one and two—length of delay and reason for the
delay—militated against withdrawal. This was not an abuse of discretion. Defendant pleaded
guilty on May 27, 2014, and moved to withdraw his plea ninety-eight days later on September 2,
2014. This weighs against defendant as “[w]e have consistently found shorter periods to be
excessive.” Martin, 668 F.3d at 795 (collecting cases, and noting a delay of ninety-five days
“weigh[ed] against withdrawal”). Defendant contends the district court should not have held the
government’s delay in informing him that a § 5K1.1 motion would not be forthcoming against
him. In other words, but for the delay between the proffer session on May 2, 2014, and being
informed on August 9, 2014, that he could not provide “substantial assistance,” he would have
moved to withdraw his plea earlier. This reasoning, if it were to stand, “would degrade the
otherwise serious act of pleading guilty into something akin to a move in a game of chess.”
United States v. Hyde, 520 U.S. 670, 677 (1997). It would incentivize defendants, as here, to
challenge their own plea agreements when the possibility of a downward departure—as
commonly set forth in plea agreements—does not materialize. See United States v. Wynn,
663 F.3d 847, 850 (6th Cir. 2011) (timing weighed against defendant who had “attempted to
withdraw his plea only after he did not receive the consideration that he hoped to obtain from the
prosecution in exchange for his cooperation”). Moreover, defendant did not provide an
explanation as to why he waited close to another month after reviewing the presentence report to
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move to withdraw his plea. See Benton, 639 F.3d at 727 (“This Court has declined to allow plea
withdrawal when intervening time periods were as brief as one month.”).
Third, defendant has not maintained his innocence. Indeed, he admitted his guilt in open
court and in his request to withdraw his plea. This weighs heavily against him. See United
States v. Ellis, 470 F.3d 275, 280 (6th Cir. 2006) (“When a defendant has entered a knowing and
voluntary plea of guilty at a hearing at which he acknowledged committing the crime, the
occasion for setting aside a guilty plea should seldom arise.”) (citation and quotation omitted).
Fourth, the district court found that the circumstances underlying the entry of the guilty
plea are at best a neutral factor in this case. Defendant challenges this finding by again
highlighting that he entered into the plea agreement only because of his “expectation” and
“belief” that a § 5K1.1 motion would be forthcoming. But there is a significant difference
between defendant’s factually unsupported “belief that his cooperation and assistance would
result in the filing of a motion by the United States Attorney under U.S.S.G. § 5K1.1” and the
conditional “may” language contained within his plea agreement—language to which a
magistrate judge found defendant knowingly and voluntarily agreed.
Fifth, the district court found defendant to be “a relatively intelligent defendant” and that
his “intelligence or ability to understand what’s going on militates against granting the motion.”
In contesting this finding, defendant again emphasizes post-plea “facts”: that in his view, the
ATF just did not do anything with his proffered information. He does not, however, take issue
with any of the district court’s findings that he was able to understand the proceedings. Martin,
668 F.3d at 796–97.
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Sixth, defendant has extensive experience with the criminal justice system, having
twenty-eight prior convictions. Defendant does not contest this finding weighs against
withdrawal.
Finally, given defendant’s failure to establish any fair and just reason to withdraw his
guilty plea, the government need not establish prejudice. Ellis, 470 F.3d at 285–86.
IV.
Additionally, defendant raises an undeveloped issue in his appellate brief. He asserts his
attorney discovered—after he pleaded guilty—that the search warrant documents did not comply
with Rule 41 of the Tennessee Rules of Criminal Procedure (and the federal analog), and that
there was a factual error in his indictment. Accordingly, he argues, the district court violated his
due process rights by failing to withdraw his guilty plea so that he could make appropriate
constitutional challenges. However, defendant does not explain why this was so, or more
importantly, why this constitutes an abuse of discretion. By failing to fully develop this
argument, he has therefore abandoned it. Vander Boegh v. EnergySolutions, Inc., 772 F.3d 1056,
1063 (6th Cir. 2014).
Moreover, even if we were to consider defendant’s claims of error, the district court
properly considered and rejected them. We further note two other points of law supporting the
district court’s reasoning as to his challenge to the search warrants. First, “the general rule [is]
that a guilty plea . . . bars the later assertion of constitutional challenges to the pretrial
proceedings.” Lefkowitz v. Newsome, 420 U.S. 283, 288 (1975). Second, this court has
expressly rejected defendant’s import of the “exact copies” requirement of Rule 41 of the
Tennessee Rules of Criminal Procedure into the Fourth Amendment. United States v. Beals, 698
F.3d 248, 263–66 (6th Cir. 2012).
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V.
For these reasons, the district court did not abuse its discretion when it denied
defendant’s motion to withdraw his guilty plea.
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