NOT RECOMMENDED FOR PUBLICATION File Name: 25a0588n.06
No. 25-1076
UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Dec 19, 2025 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) v. UNITED STATES DISTRICT ) COURT FOR THE WESTERN ) FRANCHOT BARNES, DISTRICT OF MICHIGAN ) Defendant-Appellant. ) OPINION ) )
Before: BATCHELDER, GILMAN, and LARSEN, Circuit Judges.
LARSEN, Circuit Judge. A federal grand jury issued three superseding indictments
charging Franchot Barnes with drug offenses. He pleaded guilty to charges contained in the third
of these. He then sought to withdraw his plea, arguing that prior counsel had misadvised him
regarding a plea offer and had failed to effectuate his desire to enter an open plea to the first, now
superseded, indictment. The district court denied that motion and sentenced him to 324 months’
incarceration. He now appeals, challenging the denial of his plea-withdrawal motion and the
reasonableness of his sentence. We AFFIRM.
I.
As often happens in unfolding drug conspiracy cases, a grand jury charged Franchot Barnes
in a series of indictments, each of which superseded the previous one. On June 20, 2024, Barnes
pleaded guilty to two counts of the third superseding indictment—conspiring to distribute and
possess with intent to distribute controlled substances, and attempted distribution of cocaine. But No. 25-1706, United States v. Barnes
as Barnes tells it, he “always wanted to plead guilty to the crime he committed”—that is, the
charges contained in his first superseding indictment, conspiracy to distribute and attempted
distribution of over 500 grams of cocaine. Appellant Br. at 3.
According to Barnes, the Government “offered a Rule 11 plea agreement” shortly after he
was named in the first superseding indictment and surrendered to police. Id. Barnes’s current
counsel states that he has never “seen this Rule 11 offer,” but provides his “understanding” that it
“would have eliminated one of the charges and resulted in a favorable recommendation.” Id. at 3–
4. Although Barnes “said he wanted to accept that agreement, . . . his then counsel advised [him]
not to take the plea agreement,” citing “forfeiture concerns.” Id. at 3. Nonetheless, Barnes “told
his counsel that he wanted to plead guilty without accepting the Rule 11 offered by the
Government.” Id. at 3–4. But Barnes didn’t plead guilty while represented by his first counsel.
And the Government’s purported plea offer seems to have lapsed by the time Barnes retained a
second attorney, though that is far from clear.
Within a few weeks, the Government obtained a second superseding indictment that added
methamphetamine allegations to the conspiracy count, increasing the mandatory minimum
sentence upon conviction from five to ten years. Eventually, a third superseding indictment
increased the quantity of cocaine tied to Barnes from over 500 grams to over 5 kilograms. At this
point, Barnes’s third and present attorney advised him to enter an open plea to the third superseding
indictment.
At the change-of-plea hearing, the district court asked whether Barnes had questions about
the penalties he was facing as a result of his plea. In response, Barnes asked detailed questions
about the quantity of cocaine he was admitting to, noting that his current indictment said “five
kilos and then the other one it s[aid] 500 grams or more.” R. 483, Plea Hr’g Tr., PageID 2192.
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But after the Government provided an explanation for the increased quantity, Barnes indicated that
he understood. Barnes also indicated that he had “wanted to plead guilty” to an earlier indictment
with a “five-year mandatory minimum,” but had waited due to counsel’s advice.1 Id. at 2204.
Ultimately, however, Barnes concluded that “I don’t have a choice. I guess I have to plead guilty.
I mean, I plead guilty, you know? I plead guilty.” Id. at 2207.
The court then engaged in a thorough Rule 11 colloquy with Barnes, explaining the
sentencing process and the rights he would be giving up by pleading guilty. After Barnes indicated
that he understood, the court accepted his plea as knowing and voluntary.
Shortly after an initial PSR came back with an unexpectedly high suggested Guidelines
range, Barnes moved to withdraw his plea. But he disclaimed any desire to exercise his right to
jury trial. Instead, Barnes requested that he be allowed “to plead to either the original Rule 11
[agreement] or the First Superseding Indictment.” R. 486, Mot. to Withdraw, PageID 2289. After
briefing on the issue, the district court denied the motion without a hearing.
At sentencing, the district court calculated Barnes’s offense level as 39 and his
criminal‑history category as III, producing a Guidelines range of 324 to 405 months’ incarceration.
That offense level was based on a drug weight of between 15 and 50 kilograms of cocaine, as
supported by intercepted text messages and phone calls between Barnes and his co-conspirators.
It also incorporated two enhancements at issue here. First, the court applied an enhancement for
obstruction of justice: the court found that Barnes had attempted to frustrate forfeiture by hiding
jewelry in Los Angeles and by attempting to liquidate one of his Michigan houses. Second, the
1 It’s not clear from the briefing whether Barnes blames his first or second attorney (or both) for his failing to enter an open plea. At the sentencing hearing, Barnes seems to focus on his second attorney’s recommendation not to enter a plea because a jurisdictional defense may have been available and because counsel wanted to “hear the tapes” that would be produced in discovery. See id. at 2202–03. -3- No. 25-1706, United States v. Barnes
court applied an enhancement for a firearm found in that house. The court rejected Barnes’s
request for a downward variance, a request based in part on a comparison to his co-defendant Jomo
Grady. The court sentenced Barnes to 324 months’ incarceration, the low end of the Guideline
range. Barnes timely appealed.
II.
Barnes argues that the district court erred in concluding that he had not “show[n] a fair and
just reason for requesting” to withdraw his plea. Fed. R. Crim. P. 11(d)(2)(B). We review that
decision, as well as the court’s decision not to hold an evidentiary hearing, under the
abuse‑of‑discretion standard. See United States v. Spencer, 836 F.2d 236, 238 (6th Cir. 1987);
United States v. Watkins, 815 F. App’x 22, 26 (6th Cir. 2020).
Barnes’s motion is grounded in his assertion that his prior counsel was ineffective for
advising him to decline the Government’s Rule 11 plea offer and for failing to effectuate his desire
to enter an open plea to the First Superseding Indictment. See Appellant Br. at 3–4. Barnes
disavows any intent to exercise his right to jury trial, instead requesting that we remedy the
ineffective assistance by directing the district court to permit him to plead “to the original plea
offered or to plead as charged to the First Superseding Indictment.” Appellant Br. at 43.
Barnes’s ineffective-assistance claim is premature. In general, such claims “are best
brought by a defendant in a post-conviction proceeding . . . so that the parties can develop an
adequate record on the issue.” United States v. Thomas, 74 F.3d 701, 715 (6th Cir. 1996) (citation
modified). “An exception exists, however, when the record is adequately developed to allow this
Court to assess the merits of the issue.” United States v. Hall, 200 F.3d 962, 965 (6th Cir. 2000);
see also United States v. Carson, 32 F.4th 615, 621 (6th Cir. 2022) (holding that an evidentiary
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hearing produced an adequate record to permit consideration of an ineffective-assistance claim in
the context of a motion to withdraw).
Here, the record is not so developed. Although Barnes’s briefs provide short summaries
of the facts surrounding the earlier plea discussions, Barnes provided no affidavit, either here or in
the district court, attesting to those facts. He provides little detail about the contents of the Rule
11 plea offer or about the specific, allegedly ineffective advice counsel gave him. And despite
now faulting the district court for failing to hold an evidentiary hearing, Barnes did not request or
mention such a hearing in his motion to withdraw except to indicate counsel’s “belie[f] that
[Barnes] would testify” to the facts represented in the brief, which were derived “from
conversations between current counsel and Mr. Barnes” “in the event the Court orders an
evidentiary hearing on this motion.” R. 486, Mot. to Withdraw, PageID 2301. The district court
did not abuse its discretion in declining to order a hearing to cash Barnes’s promissory note for
testimony he was unwilling or unable to place in a sworn affidavit or even proffer in any detail.
Setting aside the ineffective-assistance claim, Barnes offers little to suggest that the district
court abused its discretion by refusing his request to withdraw his plea. The rule regarding the
withdrawal of guilty pleas is designed “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. Goddard, 638 F.3d 490, 493–94 (6th Cir. 2011) (citation
modified). We typically structure our analysis of plea-withdrawal claims around seven
non‑exhaustive factors. Those include:
(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 -5- No. 25-1706, United States v. Barnes
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. Id. (citation omitted).
As the district court explained, those factors weigh decisively against Barnes. The district
court reasonably determined that the 179-day delay between his plea and his motion to withdraw,
apparently triggered by the unfavorable presentence report, weighed heavily against his motion.
We often uphold denials of motions to withdraw when fewer than six months separated the entry
of the plea and the motion. See United States v. Ellis, 470 F.3d 275, 281 (6th Cir. 2006) (collecting
cases). Barnes’s failure to assert actual innocence, his college education, his familiarity with the
criminal-justice system, and the extensive, patient explanations he received from the district court
during his plea colloquy all buttress this conclusion. In all, the district court did not abuse its
discretion in concluding that Barnes did not show a “fair and just reason” to withdraw his plea.
III.
Barnes next argues that his sentence was procedurally unreasonable. Procedural
reasonableness requires the court to “properly calculate the guidelines range, treat the range as
advisory, consider the sentencing factors in 18 U.S.C. § 3553(a), refrain from considering
impermissible factors, select the sentence based on facts that are not clearly erroneous, and
adequately explain why it chose the sentence.” United States v. Rayyan, 885 F.3d 436, 440 (6th
Cir. 2018). We review preserved errors under the abuse-of-discretion standard. Id.
Co-Defendant Sentencing Disparity. Barnes argued at sentencing that he ought to receive
a lower sentence, one closer to the 210 months’ incarceration imposed on co-defendant Jomo
Grady. Emphasizing what he considered Grady’s similar behavior, Barnes’s sentencing
memorandum argued that his sentence should resemble Grady’s. But he didn’t get far into this
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argument at the sentencing hearing before the district court interrupted him. Explaining that it had
“sentenced Mr. Grady,” and “kn[e]w the[] PSRs” and “offense levels” of both defendants, the
district court concluded that “[t]hey’re different.” R. 539, Sentencing Tr., PageID 2977. The court
then asked Barnes’s counsel “to talk about [his] client” instead. Id. Barnes’s attorney repeated his
request that, given the “disparity,” the court “look at Mr. Grady’s sentence.” Id. Counsel then
moved on.
Later, the Government offered its view of the factors “that distinguish . . . Mr. Barnes from
Mr. Grady.” Id. at 2988. For example, “in Mr. Grady’s case there was no obstruction
[enhancement], there was no gun enhancement, [and] there was no premises enhancement,” all of
which were present in Barnes’s case. Id.
Barnes now argues that the district court failed to address his disparity argument. We
disagree. Although disparities among co-defendants are not the object of 18 U.S.C. § 3553(a)(6)’s
command to “avoid unwarranted sentence disparities,” a court may “consider th[at] disparity”
when fashioning a sentence in “his or her discretion.” United States v. Wallace, 597 F.3d 794, 803
(6th Cir. 2010) (discussing United States v. Simmons, 501 F.3d 602, 624 (6th Cir. 2007)). Even if
a court declines to exercise that discretion, the record must reflect that the district court considered
a defendant’s non-frivolous argument in this regard. Id.
Here, the district court did so. The court initially indicated that it had “sentenced Mr.
Grady,” that it “kn[e]w the[] PSRs” of both defendants, “kn[e]w their offense levels,” and had
concluded that the two individuals were “different.” R. 539, Sentencing Tr., PageID 2977. And
when it came time to impose sentence, the court returned to the disparity argument. It first noted
that it had “been very carefully paying attention to who’s involved in this drug trafficking
organization, what they’ve done, where I’ve sentenced them, what factors they’ve had, . . . where
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they have fallen.” Id. at 2996. It had even kept track of the sentences other judges in the district
had imposed on Barnes’s co-conspirators. And with respect to the particular request that the court
“consider [the] Grady sentence,” the court indicated that it “did at 210 [months’ incarceration].
He had different factors going on.” Id. at 2997.
This record, while brief, is sufficient to show that the court considered Barnes’s disparity
argument. Although “the judge might have said more,” where “the record makes clear that the
sentencing judge considered the evidence and arguments,” the law does not “require[] the judge to
write [or speak] more extensively.” Rita v. United States, 551 U.S. 338, 359 (2007). Barnes argues
to the contrary, pointing to Wallace and United States v. Guerrero, 2024 WL 3427204 (6th Cir.
2024), for support. But this case is not like Wallace, where a judge “was completely
non‑responsive to th[e] argument,” “not mak[ing] even a cursory mention of the disparity in
sentences.” 597 F.3d at 803–04. Nor is it like Guerrero, where the “district court did not
acknowledge [the] argument in the slightest.” 2024 WL 3427204 at *10. Accordingly, the district
court did not err.
Dangerous Weapon Enhancement. Next, Barnes argues that the district court erred in
applying a two-point enhancement under U.S.S.G. § 2D1.1(b)(1) for possessing a dangerous
weapon. The enhancement applies where the Government establishes that “(1) the defendant
actually or constructively possessed the weapon, and (2) the weapon was possessed during relevant
conduct to the offense.” United States v. Brown, 131 F.4th 337, 344 (6th Cir. 2025) (citation
modified). Once those first two prongs have been met, “the burden shifts to the defendant to show
that it was clearly improbable that the weapon was connected to the offense.” United States v.
Catalan, 499 F.3d 604, 606 (6th Cir. 2007) (citation modified). When “the government attempts
to apply this enhancement based on the conduct of a co-conspirator,” it “must establish that the
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dangerous weapon possession was within the scope of the jointly undertaken criminal activity; in
furtherance of that criminal activity; and reasonably foreseeable in connection with that criminal
activity.” Brown, 131 F.4th at 344. A district court’s finding on the first question, possession, is
reviewed under the clear-error standard. Id. We review de novo whether the “weapon was
possessed during relevant conduct.” Id. (citation modified). “But when the relevant conduct
determination depends on co-conspirator liability (like in this case), factual findings about the
conspiracy are reviewed for clear error.” Id.
Barnes argues that the district court erred in concluding that he could be held responsible
for a gun found in a home on Braile Street, which Barnes owned jointly with his mother. Before
confronting this argument, however, the Government urges us to affirm on the ground that Barnes
failed to challenge his possession of a second gun found at his home on Sandalwood Drive, where
cash deliveries were made. The Government argues that the district court found Barnes’s
possession of either gun to be sufficient to warrant the enhancement. We are persuaded, however,
by Barnes’s reading of the sentencing record. As we read the record, the district court discussed
the Sandalwood firearm as “supportive evidence that [Barnes was] aware” of the presence of
firearms in the conspiracy and that it was “reasonably foreseeable that his cohort, Mr. Williams,”
who actually possessed the firearm found at the Braile Street residence, “also ha[d] a gun.” R.
539, Sentencing Tr., PageID 2902. This reading is bolstered by the fact that both the PSR and the
Government’s sentencing memorandum urged application of the enhancement on the basis of the
Braile Street firearm alone. Accordingly, we will consider only the Braile Street gun in reviewing
whether the enhancement was proper.
Nonetheless, Barnes’s challenge fails. Barnes was the co-owner of the Braile Street house
and ran his branch of a drug-trafficking organization out of that location. Accordingly, Barnes’s
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“dominion over the premises where the item is located” suffices to show his constructive
possession of the gun. United States v. Sanchez, 928 F.2d 1450, 1460 (6th Cir. 1991) (abrogated
on other grounds by United States v. Jackson-Randolph, 282 F.3d 369 (6th Cir. 2002)) (citation
modified). The loaded handgun was recovered from a kitchen drawer; cocaine was also found in
the kitchen. The presence of a firearm can further a conspiracy by acting as “protection” for those
dealing in large quantities of drugs. Brown, 131 F.4th at 345 (citation modified). And we have
held that “such possession is foreseeable when there are massive amounts of drugs in a single
location,” including as little as “20,000 dollars’ worth of cocaine.” Id. (citation modified)
(collecting cases). Here, police intercepted two kilograms of cocaine, purchased for $65,000,
which were taken by car from the Braile Street house one week before police found the firearm
loaded in a kitchen drawer beneath a cabinet in which cocaine was stored. We see no clear error
in the district court’s finding that the firearm was possessed during conduct relevant to the
conspiracy and that its possession was reasonably foreseeable to Barnes.
Obstruction Enhancement. Barnes argues that the district court erred in applying a
two‑point enhancement under U.S.S.G. § 3C1.1 for obstruction of justice. The enhancement
applies where “the defendant willfully obstructed or impeded, or attempted to obstruct or impede,
the administration of justice with respect to the investigation, prosecution, or sentencing of the
instant offense of conviction” and this “obstructive conduct related to” “the defendant’s offense of
conviction and any relevant conduct” or “a closely related offense.” U.S.S.G. § 3C1.1. Per the
Guidelines commentary, a defendant is responsible for his “own conduct” and others’ conduct he
“aided or abetted, counseled, commanded, induced, procured, or willfully caused.” Id. cmt. n.9.
When reviewing the application of this Guideline, we review the district court’s findings of
historical fact under the clear-error standard. United States v. Thomas, 933 F.3d 605, 608 (6th Cir.
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2019). We review pure questions of law de novo. Id. We have sent “mixed messages on the
standard of review” applicable to a district court’s application of law to fact under this Guideline,
id., though we recently concluded that, at least for obstruction enhancements based on perjury, the
clear-error standard applies, see United States v. Jackson, 154 F.4th 422, 427–28 (6th Cir. 2025).
We need not decide whether Jackson’s holding extends to non-perjury-based enhancements as
well. Even applying de novo review on the application of law to fact, Barnes’s claim fails.
The district court applied the obstruction enhancement on the basis of two actions. First,
it concluded that Barnes attempted to sell the Braile Street house to frustrate the Government’s
efforts at forfeiture. On July 6, 2023, the same day that police executed a search warrant at the
Braile Street house, Barnes put the property up for sale at $115,000, payable in cash or by
conventional financing. He later relisted the house for $145,000 in September; two days after the
indictment was unsealed, he dropped that price to $80,000 “cash only.” R. 539, Sentencing Tr.,
PageID 2910; see also R. 518, Gov’t Sentencing Mem., PageID 2588 (containing screenshot of
Zillow listing). Because he co-owned the house with his mother, Barnes drove to Michigan on
September 25 to personally sign over his power of attorney. This was more than a week after the
indictment was unsealed, but more than two weeks before he would turn himself in to the police.
Second, the district court noted Barnes’s decision to deposit his jewelry with a jeweler in Los
Angeles after the unsealing of the indictment and before leaving for Michigan, a practice that was
“out of the ordinary,” that generated no documentation, and that allowed co-conspirators to retrieve
jewelry to purchase drugs. R. 539, Sentencing Tr., PageID 2918–19, 2970. In all, the district court
concluded, Barnes was “clearly trying to hide assets so that they [would] not [be] subject to
forfeiture” and “it’s not hard to conclude that Mr. Barnes obstructed justice.” Id. at 2970.
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Barnes now argues that this evidence was insufficient to show that he acted with the intent
to skirt forfeiture. Questions of intent—that is, judgments as to “why” someone took an action—
are matters of “historical fact finding” reviewed under the clear-error standard. Thomas, 933 F.3d
at 608. Barnes has not come close to overcoming this high bar. On the timing of the sale, he
argues that the initial listing of the Braile Street house, before the unsealing of the first indictment,
demonstrates his good faith. But that first listing came a week after police intercepted two
kilograms of cocaine being transported from the house, and the same day a search warrant was
executed. Similarly, the fact that Barnes co-owned the house with his mother does not distance
him from the sale. Barnes traveled from California to Michigan to execute the power of attorney
in person, knowing that he was under indictment. He later lied about the purpose of his travel,
claiming it was only to “turn [him]self in,” when, in fact, he tarried in Michigan for two and a half
weeks before doing so. See R. 483, Plea Hr’g Tr., PageID 2200. The district court did not err in
applying the obstruction enhancement.
Drug Weight. Finally, Barnes argues that the district court erred in finding that he was
responsible for trafficking between 15 and 50 kilograms of cocaine. The drug weight
determination “is a factual finding that we review for clear error.” United States v. Russell, 595
F.3d 633, 646 (6th Cir. 2010). Barnes argues that the district court erred by concluding: (1) that
text-message references to single-digit integer quantities of cocaine denoted kilograms and not
ounces, (2) that the seizure of six kilograms of cocaine from his co-defendant, Ivan Williams,
could be attributed to Barnes, and (3) that the value of the jewelry could contribute to the estimated
total drug weight. But, as the district court rightly concluded, neither the cocaine seized from
Williams, nor the value of the jewelry is necessary to reach 15 kilograms. So we decline to address
either of these arguments.
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With respect to Barnes’s remaining argument, he contends that the district court clearly
erred by interpreting text messages and conversations between him and his co-conspirators as
referring to kilogram quantities of drugs rather than ounces. For example, in one text Barnes
instructed Williams to “save one for R.J.”; in another, Williams told Barnes that “Sweets wants to
purchase four.” R. 539, Sentencing Tr., PageID 2892.
The district court carefully walked through each call and message and concluded that the
quantity referred to should be measured in kilograms, not ounces. The court then concluded that
the amounts totaled 18 kilograms. As for why the conversations referenced kilograms and not
ounces, the court credited the testimony of the Government’s expert, Agent Falletich, who
interpreted the discussions as relating to kilograms. The court also noted that Barnes’s recorded
discussion of a $24,500 drug debt owed to his co-defendant was an amount “consistent with kilo
level transactions.” Id. So was the amount of “insurance” (a Rolex) that Barnes’s girlfriend
offered in a recorded call as collateral for “two little pieces.” Id. at 2893. And, as the district court
explained, investigators had intercepted two and then six kilograms of cocaine after conversations
referring to quantities of “two” and “six.” Id. at 2891. That supports the inference that the relevant
quantities of cocaine referenced in all of Barnes’s text messages and phone calls were measured
in kilograms. Add it all up, and the district court didn’t clearly err in calculating the drug weight.
***
We AFFIRM.
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