United States v. Jackson , 238 F. App'x 45 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0399n.06
Filed: June 14, 2007
No. 06-3754
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
KENYATTA JACKSON, ) SOUTHERN DISTRICT OF OHIO
)
Defendant-Appellant. )
Before: ROGERS and COOK, Circuit Judges; and DOWD, District Judge.*
COOK, Circuit Judge. Kenyatta Jackson pleaded guilty to one count of possessing with
intent to distribute more than five grams of crack cocaine, in violation of 21 U.S.C. § 841(a) and
(b)(1)(B)(iii), and to one count of possession of a firearm in furtherance of a drug trafficking crime,
in violation of 18 U.S.C. § 924(c)(1)(A)(i). Jackson appeals the district court’s denial of his motion
to withdraw his guilty plea and his motion to suppress his post-Miranda confession. We affirm.
I
*
The Honorable David Dudley Dowd, Jr., Senior United States District Judge for the
Northern District of Ohio, sitting by designation.
No. 06-3754
U.S. v. Jackson
Jackson went to the Westside Child Daycare Center and handed a box to a school employee
for safekeeping. The employee opened the box, saw a gun inside, closed it, and called the Columbus
police. Jackson saw the officers arrive and ran to the basement to hide. He hid a bag of crack
cocaine and his gun there before attempting to leave the school. The police caught Jackson, arrested
him, and placed him in a police cruiser. They searched the school and found the loaded gun and
crack in the daycare basement.
While in the back of the police cruiser, Officer Christine Nemchev told Jackson, who had
yet to be given his Miranda warnings, that he might as well come clean. Jackson told the officer that
the school employee had no right to look in the box he gave her. Two hours later, the Columbus
Police Department’s (CPD) liaison to the ATF, Brett Slaughter, and an ATF special agent, Beth
Dallas, interviewed Jackson at CPD headquarters. They first advised him of his Miranda rights and,
after he waived them, ensured that the waiver was knowing and voluntary. Jackson confessed to
Dallas and Slaughter and indicated his desire to cooperate with law enforcement. After he was
indicted, Jackson moved to suppress the statements in the cruiser and his confession to Dallas and
Slaughter. The district court granted his motion with respect to the cruiser statements and denied
it with respect to his confession.
Jackson initially pleaded not guilty, but later accepted a charge bargain. He entered an
unconditional plea to possessing crack with intent to distribute and possessing the gun in furtherance
of a drug trafficking crime. After Jackson pleaded guilty, his counsel moved to withdraw, and he
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was appointed new counsel. Before sentencing, he moved to withdraw his guilty plea. The district
court denied the motion, finding that Jackson had failed to establish a fair and just reason under
Rule 11(d)(2)(B), and sentenced him to 120 months. He now appeals both the denial of his motion
to suppress and the denial of his motion to withdraw his plea.
II
We review a “district court’s denial of a motion to withdraw a guilty plea for abuse of
discretion.” United States v. Dixon, 479 F.3d 431, 436 (6th Cir. 2007) (citing United States v. Pluta,
144 F.3d 968, 973 (6th Cir. 1998)). After the district court accepts the plea, a defendant may
withdraw that plea before he is sentenced only if he “can show a fair and just reason for requesting
the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B); see United States v. Quinlan, 473 F.3d 273, 276 (6th
Cir. 2007). Jackson bears the “burden to demonstrate that proper grounds exist for the granting of
such a motion.” Dixon, 479 F.3d at 436 (citing United States v. Triplett, 828 F.2d 1195, 1197 (6th
Cir. 1987)).
We look to seven factors when deciding whether a defendant can provide a “fair and just”
reason for withdrawing his plea:
(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;
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(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.
Dixon, 479 F.3d at 436 (quoting Pluta, 144 F.3d at 973); accord Quinlan, 473 F.3d at 276-77;
United States v. Ellis, 470 F.3d 275, 281 (6th Cir. 2006); United States v. Bashara, 27 F.3d 1174,
1181 (6th Cir. 1994). Although the district court used a five-factor test, see, e.g., United States v.
Riascos-Suarez, 73 F.3d 616, 621 (6th Cir. 1996), the two tests are virtually identical, and we will
apply the seven-factor test set forth above.
Jackson’s primary reason for asking the court to allow him to withdraw his plea is rooted in
the fourth factor—circumstances underlying the plea. He argues that the district court erred by
misstating the § 924(c) elements during the plea colloquy when it explained, “Count 2, the charge
of possession of a firearm in furtherance of a drug trafficking crime, the elements are as follows:
first that you knowingly possessed a firearm, and, second, the possession was in furtherance of or
was possessed to aid in the commission of a drug trafficking crime . . . .”
Section 924(c) prohibits using a firearm in furtherance of a drug trafficking crime or carrying
a firearm during and in relation to a drug trafficking offense. United States v. Combs, 369 F.3d 925,
932 (6th Cir. 2004). Jackson argues that the district court’s adding of the phrase “aid in the
commission of” erroneously described the § 924(c) elements. The government counters that the
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phrase merely defines “in furtherance of.” We have interpreted “in furtherance of” to require a
specific nexus between the gun and the crime charged. See, e.g., Combs, 369 F.3d at 933; United
States v. Mackey, 265 F.3d 457, 462 (6th Cir. 2001). The gun must advance, promote, or facilitate
the crime. See Mackey, 265 F.3d at 461; United States v. Paige, 470 F.3d 603, 609 (6th Cir. 2006).
While § 924(c) does not read as the district court said, there seems little light between “aid” and
“furtherance” in this context, and any error strikes us as minor.
Jackson does not allege any specific confusion as a result of the district court’s technical
misstatement of the § 924(c) elements. He does not explain what he thought “aid” meant and how
that might be different than “furtherance,” and, even assuming the district court’s recitation of the
§ 924(c) elements actually confused him, why he would have pleaded guilty to possessing a gun to
aid the commission of a drug offense but not to possessing a gun to further a drug offense.
Nor should the district court’s misstatement be examined in a vacuum. The indictment
alleged that Jackson “did knowingly possess a firearm . . . in furtherance of a drug trafficking crime.”
During the plea colloquy, the district court asked Jackson whether he had been furnished with the
indictment, whether he understood the nature and meaning of the crimes, whether he discussed the
crimes with his attorney, and whether his attorney fully advised him of the nature and meaning of
the crimes. Jackson answered “yes” to each of these questions. He also admitted the factual basis
of the § 924(c) charge. Furthermore, in his plea agreement, Jackson agreed in writing to plead guilty
to “possession of a firearm in furtherance of a drug trafficking crime.”
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U.S. v. Jackson
Although we agree with Jackson that the district court should not have inserted the language
“to aid in the commission of,” his task is to provide us a reason to allow him to withdraw his plea.
We recognize the possibility of a district court so misstating the elements of a crime that a defendant
could rightly complain that he did not know to which offense he was pleading guilty. See United
States v. Gandia-Maysonet, 227 F.3d 1, 3-5 (1st Cir. 2000) (allowing a defendant to withdraw his
plea where the trial court repeatedly misstated the scienter element). The misstatement here was far
less serious than the one in Gandia, and Jackson has not shown how the district court’s alleged error
actually prejudiced him.1 Simply put, the circumstances underlying the plea do not warrant allowing
Jackson to withdraw it.
The amount of time between Jackson’s entry of the plea and his motion to withdraw—forty
days—also militates against allowing withdrawal. Generally, the shorter a defendant’s delay
between entering a plea and moving to withdraw it, the more favorably disposed the court is to
withdrawal. Conversely, “a defendant’s reasons for [moving to withdraw a plea] will be more
closely scrutinized when he has delayed his motion for a substantial length of time.” Ellis, 470 F.3d
1
In his brief, Jackson mentioned Rule 11(b)(1)(G) (requiring district courts to explain “the
nature of each charge to which the defendant is pleading”), although he requested only that he be
allowed to withdraw his plea under Rule 11(d)(2)(B). At oral argument, Jackson’s counsel relied
primarily on Rule 11(b)(1)(G) and suggested relief under that section would be appropriate as well.
A defendant may request that an appellate court vacate a guilty plea for failure to comply with Rule
11(b). Jackson has not argued for such relief except cursorily. See Meridia Prods. Liab. Litig. v.
Abbott Labs., 447 F.3d 861, 868 (6th Cir. 2006) (declining to consider an inadequately developed
argument). That said, because Jackson failed to object contemporaneously, we would review for
plain error. United States v. McCreary-Redd, 475 F.3d 718, 721 (6th Cir. 2007). And given that we
find no prejudice, any Rule 11(b)(1)(G) error would not permit us to vacate Jackson’s plea.
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at 281 (quoting United States v. Baez, 87 F.3d 805, 808 (6th Cir. 1996)). Numerous decisions of this
court have found that delays on the order of forty days weigh against granting the motion to
withdraw. See, e.g., United States v. Valdez, 362 F.3d 903, 912 (6th Cir. 2004) (seventy-five days);
United States v. Durham, 178 F.3d 796, 798-99 (6th Cir. 1999) (seventy-seven days); Baez, 87 F.3d
at 808 (sixty-seven days); Bashara, 27 F.3d at 1181 (forty-six days); United States v. Goldberg, 862
F.2d 101, 104 (6th Cir. 1988) (fifty-five days); United States v. Spencer, 836 F.2d 236, 239 (6th Cir.
1987) (thirty-six days).
None of the other Dixon factors supports allowing Jackson to withdraw his plea. Other than
a generalized complaint about his counsel, Jackson offers no specific reason why he failed to
withdraw his plea earlier. Furthermore, we will not read Jackson’s not-guilty plea as an assertion
of innocence within the meaning of the third factor. Finally, we note that Jackson’s lack of formal
education is not a reason to excuse a guilty plea, especially considering his veteran status with the
criminal justice system. And given that the first six factors weigh against allowing Jackson to
withdraw his plea, we need not consider the seventh factor—prejudice to the government. See
United States v. Lineback, 330 F.3d 441, 445 (6th Cir. 2003) (Gilman, J., concurring) (“[W]here a
defendant fails to show [a reason for withdrawing his plea], the court need not consider . . . whether
the withdrawal would prejudice the government.” (citing United States v. Alexander, 948 F.2d 1002,
1004 (6th Cir. 1991))).
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No. 06-3754
U.S. v. Jackson
Jackson bears the burden to show a fair and just reason that would entitle him to withdraw
his guilty plea under Rule 11(d)(2)(B). We agree with the district court’s exercise of discretion here
in finding Jackson failed to carry his burden.
III
Jackson also appeals the district court’s denial of his motion to suppress. Jackson, however,
did not enter a conditional guilty plea, Fed. R. Crim. P. 11(a)(2), which would have allowed him to
appeal “an adverse ruling on a pre-plea motion to suppress evidence.” United States v. Bell, 350
F.3d 534, 535 (6th Cir. 2003). Jackson waived his right to appeal this ruling, and we affirm on that
basis.
IV
Because the district court properly denied Jackson’s motion to withdraw his guilty plea and
Jackson has waived his right to appeal the denial of the suppression motion, we affirm the judgment
of conviction.
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