United States v. Dunn

52 F. App'x 666
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 3, 2002
DocketNo. 01-3619
StatusPublished

This text of 52 F. App'x 666 (United States v. Dunn) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Dunn, 52 F. App'x 666 (6th Cir. 2002).

Opinion

PER CURIAM.

Paul Dunn was indicted with fifteen co-defendants for various drug-related offenses. On December 21,1999, he entered into a plea agreement and pled guilty to Count I of the indictment, charging conspiracy to distribute and possess with the intent to distribute marijuana and cocaine, in violation of 21 U.S.C. § 846.

On that day Dunn stipulated to the following facts under oath: He and others conspired to distribute marijuana and cocaine; he and a co-defendant arranged for drugs to be sent from California to Cincinnati by UPS, FedEx, and various other means; he would travel frequently from California to Cincinnati to supervise the distribution process; he caused over 15 kilograms and hundreds of pounds of marijuana to be sent to Cincinnati; and he would have others wire the proceeds back to California.

More than six months later, Dunn filed a motion to withdraw his guilty plea, one month after the court had appointed substitute counsel, and after he had seen the presentence report (“PSR”) that had been prepared. The district court denied his motion. During his sentencing hearing, the district court found him responsible for distributing more than 15 kilograms of cocaine. Dunn was sentenced to 197 months of imprisonment and five years of supervised release.

Dunn appeals to this court from the final judgment of guilt and his sentence. He argues that the district court abused its discretion by not allowing him to withdraw his guilty plea. We affirm.

I

“The withdrawal of a guilty plea prior to sentencing is not an absolute right but is a matter within the broad discretion of the district court.” United States v. Head, 927 F.2d 1361, 1375 (6th Cir.1991) (quoting United States v. Spencer, 836 F.2d 236, 238 (6th Cir.1987)); United States v. Goldberg, 862 F.2d 101, 103 (6th Cir.1988). This court, therefore, reviews the district court’s decision to deny a motion to withdraw a guilty plea for an abuse of discretion. United States v. Bashara, 27 F.3d 1174, 1180 (6th Cir.1994), superseded on other grounds by statute as stated in United States v. Caseslorente, 220 F.3d 727, 734 (6th Cir.2000).

[668]*668“If a motion for withdrawal of a plea of guilty ... is made before sentence is imposed, the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason.” Fed. R.Crim.P. 32(e). In determining whether a defendant has shown a “fair and just reason,” this court considers several factors, including:

(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.

Bashara, 27 F.3d at 1181. Unless the defendant has presented a fair and just reason for vacating his plea, prejudice to the government need not be established or considered. United States v. Alexander, 948 F.2d 1002, 1004 (6th Cir.1991).

II

Regarding the first and second factors, Dunn argues that the amount of time between his plea and his motion to withdraw was not excessive, and because he moved to withdraw his guilty plea only one month after he had been appointed new counsel, he presented a valid reason for failing to move for withdrawal earlier in the proceedings. His motion to the district court stated:

It was not until the Pre-Sentence Investigation Report became available that defendant Paul Dunn III truly became aware of the consequences of the Plea Agreement. It was not until then that he began to request the withdrawal of his plea, which could not formally occur until new counsel was appointed and able to review the matter.

JA at 76-77. As to the third factor, Dunn argues that while he does not deny his involvement in the conspiracy, he disputes the amount of drugs for which he has been held responsible. Regarding the fourth factor, he argues that he did not have time to consider properly the plea agreement and that he made his decision to plead guilty hastily. He offered no argument as to the next two factors, stating that the previous four outweigh them. Regarding the seventh factor, he maintains that the government would not be prejudiced by a withdrawal of the plea, as his guilty plea was not entered into on the day of trial, and the government would not have to recall witnesses.

His affidavit to the district court in support of his motion states that he had always disputed the amount of cocaine attributed to him; that he was assured by the United States Attorney and his own appointed lawyer that if he agreed to the plea agreement, he “would have the right level at the end”; and that he was led to believe that if he entered into the plea agreement he would receive seven to ten years in prison, but would receive thirty or more years if he went to trial. JA at 79-80.

The district court noted in its order denying Dunn’s motion to withdraw his guilty plea that it was not concerned with the amount of time that passed between the date of Dunn’s guilty plea and the date he made his motion for withdrawal. However, the district court stated that Dunn had not presented a valid reason for moving for withdrawal when he did. The district court went on to conclude that “[fjundamentally, a defendant should not be permitted to attempt to withdraw a guilty plea because he subsequently disap[669]*669proves of the PSR.” JA at 86. The district court stated that Dunn understood that the court and the probation department were not bound by the plea agreement when calculating his sentence and that the difference between the amount of cocaine to which he pled guilty and the amount attributed to him in the PSR did not affect the calculation of his sentence.

As to the third factor, the district court observed that Dunn admits his guilt to the underlying charge, and merely disputes the amount of drugs attributed to him. Moreover, he stated to the court under oath that he had caused the distribution of 15 kilograms of cocaine.

The district court also found that Dunn’s assertion that he had not had time to consider his guilty plea was not accurate. The court stated that it had taken “great pains during the change of plea hearing to ensure that Mr. Dunn knew the consequences of his plea, and that he had seriously considered his decision to plead guilty.” JA at 89.

III.

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United States v. Cotton
535 U.S. 625 (Supreme Court, 2002)
United States v. Gregory Angelo Spencer
836 F.2d 236 (Sixth Circuit, 1987)
United States v. Marvin Goldberg
862 F.2d 101 (Sixth Circuit, 1988)
United States v. Michael Alexander
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226 F.3d 521 (Sixth Circuit, 2000)

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Bluebook (online)
52 F. App'x 666, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dunn-ca6-2002.