United States v. Valdez

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 2, 2004
• Docket: 02-3043
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Valdez No. 02-3043 ELECTRONIC CITATION: 2004 FED App. 0094P (6th Cir.) File Name: 04a0094p.06 UNITED STATES DEPARTMENT OF JUSTICE, CRIMINAL DIVISION, Washington, D.C., for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT OPINION _________________ _________________

UNITED STATES OF AMERICA , X CLAY, Circuit Judge. After pleading guilty prior to trial in the United States District Court for the Northern District of Plaintiff-Appellee, - Ohio to one count of conspiring to possess cocaine with the - - No. 02-3043 intent to distribute in violation of 21 U.S.C. §§ 841 and 846, v. - Julio Valdez moved to withdraw his plea on the ground that > he did not understand the quantity of drugs which he had , admitted possessing. The district court denied that motion JULIO VALDEZ, - Defendant-Appellant. - and sentenced Valdez to 192 months’ imprisonment followed by five years of supervised release. Because Valdez’s guilty N plea was voluntary and the district court did not abuse its Appeal from the United States District Court discretion in denying his motion to withdraw the plea, we for the Northern District of Ohio at Toledo. AFFIRM his conviction and sentence. We refuse to entertain No. 00-00756—David A. Katz, District Judge. Valdez’s claim of ineffective assistance of counsel as unripe for review. Argued: January 27, 2004 I Decided and Filed: April 2, 2004 On September 5, 2000, a grand jury sitting in the Northern Before: SUHRHEINRICH, CLAY, and SUTTON, Circuit District of Ohio returned a multi-count indictment against Judges. numerous Defendants, including Defendant Julio Valdez. The grand jury charged Valdez with conspiracy to distribute _________________ and possess with intent to distribute cocaine, cocaine base and marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846 COUNSEL (Count 1); knowingly and intentionally possessing with the intent to distribute approximately 80.79 grams of cocaine in ARGUED: Matthew M. Robinson, Cincinnati, Ohio, for violation of 21 U.S.C. § 841(a)(1) (Count 15); and knowingly Appellant. Jeffrey P. Singdahlsen, UNITED STATES and intentionally possessing with the intent to distribute DEPARTMENT OF JUSTICE, CRIMINAL DIVISION, approximately 12.12 grams of cocaine in violation of Washington, D.C., for Appellee. ON BRIEF: Matthew M. 21 U.S.C. § 841(a)(1) (Count 16). Count 1 of the indictment Robinson, Cincinnati, Ohio, for Appellant. Louis M. Fischer, did not ascribe a specific amount of cocaine or cocaine base to Valdez, although it described a drug conspiracy

1 No. 02-3043 United States v. Valdez 3 4 United States v. Valdez No. 02-3043

masterminded by David Trinidad Gonzalez, who allegedly Criminal Procedure. The court noted the terms of the plea had obtained over 500 kilograms of cocaine and over 10 agreement and also that “the parties have stipulated that the kilograms of cocaine base. The indictment explained that defendant conspired to possess with intent to distribute at Gonzalez distributed those drugs through many of his family least 50 kilograms but not less than 150 kilograms of cocaine, members, relatives and associates, including Defendant that being a base level of 36.” (Tr. at 3.)1 During the court’s Valdez and ten others. colloquy to determine Valdez’s competence to withdraw his guilty plea, Valdez informed the court that he had attended up In August 2001, Valdez agreed via a written plea agreement to the eighth grade in school and could read and write to plead guilty to the conspiracy count (Count 1), in exchange English. He also told the court that he was in good physical for the government’s agreement to drop Counts 15 and 16 and health and had not taken any medication in the last two days not to oppose a three-point reduction in the applicable that would impair his ability to understand what was sentencing guideline offense level for Valdez’s acceptance of happening around him. After the court found Valdez responsibility. The agreement stated, in part: competent, Valdez told the court that he was satisfied with his attorney’s efforts and advice up to that point in time and that By signing this agreement, the defendant admits 1) that he had read the indictment and discussed it with his attorney. the conspiracy in Count 1 of the indictment existed, and Valdez’s attorney stated that he had no doubt that Valdez that he knowingly and voluntarily joined the conspiracy, completely understood the charges against him. Among other and that the purpose of the conspiracy in Count One was things, the court told Valdez that by entering a guilty plea, he to knowingly and intentionally distribute, and possess would be admitting his guilt and waiving certain rights, with intent to distribute, cocaine. including the right to have the government “prove you guilty by competent evidence beyond a reasonable doubt.” (Tr. at ** * 14.) Valdez stated that he understood the rights he would be foregoing. The government and the defendant agree and stipulate to the following statement of facts and applicable The court again asked Valdez whether he had read the plea sentencing guideline factors: agreement and gone over it with his attorney, to which Valdez responded affirmatively. The court then had the following 1. That the defendant conspired to possess exchange with Valdez: with intent to distribute at least 50 but less than 150 kilograms of cocaine (Base THE COURT: In paragraph No. 7 [of the plea Offense Level 36). agreement], it reads: The government and the defendant agree and stipulate to the following statement of facts (J.A. 102, ¶¶ 3, 7.) The agreement further noted that Valdez and applicable guideline sentencing factors: had read the plea agreement, that he had an opportunity to discuss it with his attorney, that he fully understood the agreement and that he was signing the agreement voluntarily. On August 30, 2001, the district court conducted Valdez’s 1 The Joint A ppe ndix d oes not contain a complete version of the plea plea proceedings pursuant to Rule 11 of the Federal Rules of proceedings. Citations to “Tr.” are to the complete transcript obtained from the district court. No. 02-3043 United States v. Valdez 5 6 United States v. Valdez No. 02-3043

One, that the defendant conspired to possess with (Tr. at 22.) In response to the court’s inquiries, Valdez stated intent to distribute at least 50 but less than 150 kilograms that he had heard the prosecutor’s statement and that he of cocaine[,] base offense level 36. Do you understand neither had any disagreement with it nor wished to add that? anything to it. Valdez then formally pleaded guilty to Count 1 of the indictment, which the court accepted. A presentence DEFENDANT VALDEZ: Yes, I do. investigation was ordered. THE COURT: And do you agree and stipulate to On November 13, 2001, Valdez filed a motion to vacate his that paragraph? plea, claiming that he did not fully understand the crime to which he had pleaded guilty. In a handwritten affidavit, DEFENDANT VALDEZ: Yes, I do. Valdez explained that he did not appreciate the distinction between “grams” of cocaine and the “kilograms” of cocaine (Tr. at 17.) The court then told Valdez that it could not referenced in his plea agreement and at the plea proceedings. determine his sentencing guideline range with certainty, but On December 10, 2001, the court denied Valdez’s motion to that it expected to impose a sentence between 135 and 181 vacate his plea, reasoning that Valdez had not offered an months, depending upon Valdez’s criminal history. The court explanation for the 75 days that had elapsed between Valdez’s accepted the plea agreement and confirmed that Valdez had plea and his motion to withdraw. The court further noted that not been threatened or induced to plead guilty and had agreed the circumstances surrounding the plea did not weigh in favor to plead guilty after consultation with his attorney and family. of a withdrawal because, inter alia, Valdez had stated at the plea hearing that he reads and writes English, that he had read After accepting the plea agreement, the court asked the and understood the indictment and that he had discussed the prosecutor to articulate the factual underpinning for Valdez’s indictment with his attorney. Last, the court noted the plea. The prosecutor stated, in relevant part: “distinct possibility of substantial prejudice to the With regard to Julio Valdez, the evidence will show Government” if a withdrawal were allowed because “the that he … joined the conspiracy in question and he was recollections of witnesses may not be as fresh now” and … given and sold to him amounts of cocaine as set forth because “substantial time and money would need to be spent in the factual stipulation, 50 to 150 kilograms and that he in preparation for and execution of a trial.” received this cocaine from Mr. David Gonzalez and from Valdez’s sentencing hearing took place on December 21, other couriers who transported it to him in Adrian and 2001. Valdez repeated his claim that he did not understand Ohio and in Marion, Ohio. Mr. Valdez then resold the that he had pleaded guilty to possessing with intent to cocaine that he received in Adrian, Michigan, and in distribute kilogram (as opposed to gram) amounts of cocaine. Marion, Ohio, and also had a set of or a group of persons The court rejected this argument, having already rejected his that he sold to including Doug Ackerman and other motion to withdraw his plea. The court then went over persons named and unnamed in the indictment in Valdez’s presentence report which had indicated a base question. offense level of 36 and a criminal history category of 6, which And the evidence would further show that … put him in the guideline range of 235 to 293 months. The defendant[] knowingly and voluntarily joined the court reduced Valdez’s criminal history category to 4 after conspiracy knowing full well its objects and its purpose. accepting Valdez’s argument that most of his criminal history No. 02-3043 United States v. Valdez 7 8 United States v. Valdez No. 02-3043

pertained to driving offenses. The court also reduced admission that he committed the offense unless the defendant Valdez’s base offense level by 3 levels for his acceptance of received real notice of the true nature of the charge against responsibility, reducing the sentencing range to 188 to 235 him, the first and most universally recognized requirement of months. The court then sentenced Valdez to 192 months of due process.’”) (quoting Smith v. O'Grady, 312 U.S. 329, 334 imprisonment followed by a term of five years’ supervised (1941)). Because a guilty plea involves the admission of “‘all release. This appeal ensued. the elements of a formal criminal charge,’” United States v. Syal, 963 F.2d 900, 904 (6th Cir. 1992) (quoting McCarthy v. II United States, 394 U.S. 459, 466 (1969)), the accused “must have knowledge of all those elements.” Id. A. Valdez’s Guilty Plea Was Knowing and Voluntary. “In a simple case the district court may need only to read This Court may hear a direct appeal to a plea proceeding the indictment and allow the defendant to ask questions about conducted pursuant to Rule 11 of the Federal Rules of the charge.” Syal, 963 F.2d at 904-05 (citingVan Buren, 804 Criminal Procedure. United States v. Van Buren, 804 F.2d F.2d at 892). “When the case is more complex, further 888, 890 (6th Cir. 1986). Because Valdez attempted to explanation may be required. In any case the district court withdraw his plea in the district court on the basis that it was must be satisfied, after discussion with the defendant in open not voluntary, the harmless error standard applies. United court, that the defendant understands the elements of the States v. Vonn, 535 U.S. 55, 62-63 (2002). The Court reviews offense.” Id. at 905 (citing Van Buren, 804 F.2d at 891). At such proceedings for substantial compliance with Rule 11, a minimum, the defendant must understand the “critical” or vacating a plea only when substantial rights of the defendant “essential” elements of the offense to which he or she pleads have been affected. United States v. Stead, 746 F.2d 355, guilty. See Bousley v. United States, 523 U.S. 614, 618-19 356-57 (6th Cir. 1984); see also Fed. R. Crim. P. 11(h) (“A (1998) (observing that defendant’s plea would be variance from the requirements of this rule is harmless error “constitutionally invalid” if “neither he, nor his counsel, nor if it does not affect substantial rights.”). Cf. Vonn, 535 U.S. the court correctly understood the essential elements of the at 63 (noting that, in contrast to harmless error review, plain crime with which he was charged”) (emphasis added); error review puts the burden of proving a deprivation of Henderson, 426 U.S. at 647 n.18 (“There is no need in this substantial rights on the defendant and further requires the case to decide whether notice of the true nature, or substance, defendant to persuade the court that the error “seriously of a charge always requires a description of every element of affected the fairness, integrity or public reputation of judicial the offense; we assume it does not. Nevertheless, intent is proceedings”) (internal quotation marks, punctuation and such a critical element of the offense of second-degree citations omitted). murder that notice of that element is required.”) (emphasis added). Rule 11 of the Federal Rules of Criminal Procedure requires that, before a court accepts a guilty plea, it must Rule 11(b)(1)(G)’s requirement that a defendant understand insure that the defendant understands, inter alia, “the nature the essential elements of the crime is integrally related to Rule of each charge to which the defendant is pleading.” Fed. R. 11(b)(3)’s requirement that the district court determine that Crim. P. 11(b)(1)(G). See also Henderson v. Morgan, 426 the plea has a factual basis. “[B]ecause a guilty plea is an U.S. 637, 645 (1976) (“[C]learly the plea could not be admission of all the elements of a formal criminal charge, it voluntary in the sense that it constituted an intelligent cannot be truly voluntary unless the defendant possesses an No. 02-3043 United States v. Valdez 9 10 United States v. Valdez No. 02-3043

understanding of the law in relation to the facts.” McCarthy, understood each element of the offense, including the 394 U.S. at 466 (citation omitted). “Thus, in addition to essential element of drug quantity which increased the directing the judge to inquire into the defendant's maximum penalty for the crime. understanding of the nature of the charge and the consequences of his plea, Rule 11 also requires the judge to The facts of this case unquestionably show that the trial satisfy himself that there is a factual basis for the plea.” Id. at court ensured Valdez understood the drug quantity to which 467. See also Fed. R. Crim. P. 11(b)(3) (requiring district he pleaded guilty because the amount of drugs had been court to determine whether there is a factual basis for a plea raised no less than four times before the trial court accepted before entering judgment on plea). Valdez’s plea. In Van Buren, supra, this Court noted:

Valdez pleaded guilty to violating 21 U.S.C. § 846 Where the crime is easily understood, several courts have (conspiracy) and § 841(a) (knowingly or intentionally held that a reading of the indictment, or even a summary possessing cocaine with the intent to distribute). A violation of the charges in the indictment and an admission by the of § 841(a) involving 50 to 150 kilograms of cocaine carries defendant, is sufficient to establish a factual basis under a maximum penalty of life imprisonment, 21 U.S.C. Rule 11. § 841(b)(1)(A), whereas an offense involving 50 to 150 grams of cocaine carries a maximum sentence of 20 years 804 F.2d at 892 (citations omitted).2 Valdez’s crime was imprisonment. 21 U.S.C. § 841(b)(1)(C). Although the “easily understood.” This Court is not aware of any authority, amount of cocaine involved in a violation of § 841(a) is an enhancement element of the offense, this element is treated no 2 differently than the traditional elements of a § 841(a) Van Buren involved a defendant who had pleaded guilty to the violation for purposes of determining whether a plea was unlawful use of a telep hone to comm it or facilitate a conspiracy to possess with intent to distribute cocaine. At his Rule 11 proceeding, the defendant knowing and voluntary. See United States v. Leachman, 309 had been read the indictment and then asked if there was anything further F.3d 377, 384 (6th Cir. 2002) (noting that the enhancement he wanted to know about the charge. This Court held that reading the elements of a violation of § 841 are not to be treated indictment to the defendant and the defendant’s subsequent admission of differently “than the more traditional elements of the offense, guilt was not sufficient to sustain the plea bec ause “[t]o fully understand such that their treatment is anything more than a mirror image the charge aga inst him, defendant must have understood wha t it meant to of the treatment of the other elements”; holding that the right be a member of a conspiracy and to act in furtherance o f that conspiracy.” Van Buren, 804 F.2d at 89 2. The Co urt faulted the Rule 11 proceed ings to have the amount of drugs proved to a jury beyond a because the defendant had not been informed of the nature of the reasonable doubt can be waived upon pleading guilty to a conspiracy and the district judge “did not inquire of defendant if he § 841(a) violation in the same way that the trial of the understood what a conspiracy was.” Id. at 891. Accord United States v. traditional elements can be waived). Also cf. Harris v. United Bickerstaff, No. 97-3449, 1998 W L 552834, at *4 (6th Cir. Aug. 13, States, 536 U.S. 545, 557 (2002) (“Apprendi [v. New Jersey, 1998) (unpublished; vacating plea to drug conspiracy count due to lack of a sufficient factual basis under Rule 11 because the court did not 530 U.S. 466 (2000)] said that any fact extending the explain to the defendant what it meant to be a member of a conspiracy defendant’s sentence beyond the maximum authorized by the and to act in furtherance of that conspiracy). This portion of the holding jury’s verdict would have been considered an element of an in Van Buren is not relevant in this case. Unlike the defendant in Van aggravated crime--and thus the domain of the jury--by those Buren, Valdez has not argued that his plea was involuntary on the ground who framed the Bill of Rights.”). Thus, prior to accepting that he did not understand what a conspiracy is or his role in the conspiracy. He has not contested the fact that he participated in a Valdez’s plea, the trial court should have ensured that Valdez conspiracy, only the q uantity of d rugs attrib utable to him. No. 02-3043 United States v. Valdez 11 12 United States v. Valdez No. 02-3043

nor has Valdez pointed to any, suggesting that a common involved during a colloquy with the judge; holding that drug possession and distribution crime becomes complex defendant “knowingly and voluntarily waived his simply when the amount of drugs is an element of the case. constitutional rights to a jury and to proof beyond a Valdez has provided this Court with no evidence or legal reasonable doubt of the amount of drugs specified against authority to overcome the common sense presumption that a him”); United States v. Baez, 87 F.3d 805, 810 (6th Cir. 1996) competent layperson who can read and write in English, (holding that district court did not violate Rule 11 in particularly a layperson who by his own admission is familiar accepting guilty plea for violation of §§ 841 and 846 because with drug transactions, can understand the significant “the plea agreement’s written description of the essential facts distinction – both in terms of mass and dollar value – underlying the charge supports a finding of guilty” and between grams and kilograms of cocaine. because of “the defendant’s express acknowledgement of the accuracy of the agreement’s provisions”); United States v. Since Valdez’s crime was not complex, his guilty plea Edgecomb, 910 F.2d 1309, 1313 (6th Cir. 1990) (finding no complied with Rule 11, as long as Valdez was provided with Rule 11 violation when defendants pleaded guilty to a sufficient summary of the charges against him. He was. At conspiracy to violations of §§ 841 and 846 after the Valdez’s plea hearing, the government summarized the drug government had read the facts constituting the conspiracy and conspiracy charges, stating that Valdez intentionally and the court had recited the count of the indictment and had knowingly had joined a conspiracy; purchased and received confirmed that defendants understood the charges against 50 to 150 kilograms of cocaine from David Gonzalez and them; holding that the district court was not required to from other couriers in Adrian, Michigan and Marion, Ohio; specifically determine whether the defendant had understood and resold the cocaine in Adrian, Michigan, and in Marion, the charged offense which was “simple enough for a lay Ohio, to Doug Ackerman and others. Valdez then expressed person to understand”). his agreement with the government’s brief summary, thereby admitting his guilt. Valdez was informed on three other Further, the Supreme Court has observed that as long as a occasions (in the plea agreement and two other times during defendant is provided a copy of his indictment prior to the plea colloquy) that he was being charged with possessing pleading guilty (as Valdez was), there is a “presumption that with the intent to distribute 50 to 150 “kilograms” of cocaine. the defendant was informed of the nature of the charge against On two of those occasions, Valdez confirmed the correctness him.” Bousley, 523 U.S. at 618 (citing Henderson, 426 U.S. of the amounts in response to the court’s inquiries. at 650 (1976) (White, J., concurring)). Relying on the Accordingly, Valdez’s plea complied with Rule 11 because he Bousley presumption, the Eighth Circuit Court of Appeals was adequately informed of the easily understandable charges rejected a Rule 11 challenge identical to Valdez’s – the against him before pleading guilty. district court’s alleged failure to inform the defendant that the government would be required to prove the quantity of the This Court previously has applied Van Buren to similar controlled substances beyond a reasonable doubt. United facts as those presented by Valdez and declined to find a States v. Perez, 270 F.3d 737, 739 (8th Cir. 2001). That court reversible Rule 11 violation. See Leachman, 309 F.3d at 384- was persuaded by the facts that (a) the trial court had advised 86 (rejecting request to vacate plea of guilty to violations of the defendant of the quantity of controlled substances alleged §§ 841 and 846 because the amount of drugs was reflected in in the indictment and the sentencing range based on those the defendant’s indictment, the plea was not coerced, and the quantities and (b) the defendant pleaded guilty to those defendant “implicitly” had agreed to the amount of drugs amounts stated in the indictment. Id. at 740. Similarly, in No. 02-3043 United States v. Valdez 13 14 United States v. Valdez No. 02-3043

this case, Valdez was advised of the quantity of cocaine to If this Court were to follow Ninth Circuit precedent, Valdez which he pleaded guilty and the sentencing range for such a would have a strong argument that, notwithstanding his plea; Valdez then pleaded guilty. repeated admission to possessing with the intent to distribute kilogram amounts of cocaine, he “could not properly evaluate Arguably, the Eighth Circuit’s Perez is inapposite because the risks of entering the plea agreement, and could not it involved a plain error standard of review, whereas here the intelligently and voluntarily plead guilty,” because the district less rigorous harmless error standard applies due to Valdez’s court did not inform him that the government needed to prove attempt to withdraw his guilty plea prior to sentencing. Two drug quantity beyond a reasonable doubt. Villalobos, 333 panels of the Ninth Circuit Court of Appeals recently reached F.3d at 1075. But we sit in the Sixth Circuit, not the Ninth opposite results on facts similar to Perez primarily because of Circuit. To vacate Valdez’s conviction under Ninth Circuit the different standards of review applicable in those cases. precedent would result in an irreconcilable conflict with the Compare United States v. Villalobos, 333 F.3d 1070, 1074 prior rulings of this Court. We therefore hold that the district (9th Cir. 2003) (applying harmless error standard because court complied with Rule 11. defendant challenged drug quantity at sentencing hearing; vacating plea of guilty to violations of §§ 841(a) and 846, B. The District Court Did Not Abuse Its Discretion in even though the defendant had pleaded guilty and stipulated Denying Valdez Permission to Withdraw His Guilty in his plea agreement to the drug amount; holding that district Plea. court violated Rule 11 by not informing the defendant that the government would have to prove the quantity of drugs, an The permission to withdraw a guilty plea prior to element that would enhance the maximum penalty for the sentencing is a matter within the broad discretion of the crime, beyond a reasonable doubt) with United States v. district court. United States v. Goldberg, 862 F.2d 101, 103 Minore, 292 F.3d 1109, 1120 (9th Cir. 2002) (applying plain (6th Cir. 1988). Accordingly, this Court reviews a district error standard; holding that the district court erred under Rule court’s refusal to permit a defendant to withdraw his or her 11 by failing to advise defendant that the government must guilty plea for an abuse of discretion. Id. at 104. prove the quantity of drugs beyond a reasonable doubt when the quantity would expose defendant to a higher maximum A defendant may withdraw a guilty plea after the district sentence, but affirming conviction and sentence because court accepts a plea, but before sentencing, if the defendant defendant admitted in his plea agreement, during his plea can show “a fair and just reason for requesting the colloquy and at his sentencing hearing that he was responsible withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). The Court may for the quantity of drugs); see also United States v. Wallace, consider the following factors, among others, in deciding 276 F.3d 360, 369 (7th Cir. 2002) (applying plain error whether to grant permission to withdraw a guilty plea: review; noting that there was error in defendant’s indictment (1) whether the movant asserted a defense or whether he has and in the plea colloquy because he was not informed that the consistently maintained his innocence; (2) the length of time government would have to prove drug quantity beyond a between the entry of the plea and the motion to withdraw; reasonable doubt; affirming conviction and sentence because (3) why the grounds for withdrawal were not presented to the the defendant “never denied” his involvement with the drug court at an earlier time; (4) the circumstances underlying the quantity at issue). entry of the plea of guilty, the nature and the background of a defendant and whether he has admitted his guilt; and (5) potential prejudice to the government if the motion to No. 02-3043 United States v. Valdez 15 16 United States v. Valdez No. 02-3043

withdraw is granted. Goldberg, 862 F.2d at 103-04; accord Second, the circumstances surrounding Valdez’s plea United States v. Bazzi, 94 F.3d 1025, 1027 (6th Cir. 1996). strongly suggest that he did appreciate the crime to which he “The factors listed are a general, non-exclusive list and no one was pleading guilty and the likely sentence range to which he factor is controlling.” Id. would be subjected. As noted above, Valdez’s alleged criminal conduct was described at least four times prior to the The district court denied Valdez’s motion to withdraw his entry of his guilty plea. On three of those occasions, Valdez plea, reasoning that (1) Valdez had not offered an explanation affirmatively assented to the description of his conduct, for the 75 days that had elapsed between his plea and his including the quantity of drugs that he allegedly possessed. motion to withdraw, (2) the circumstances surrounding the There is no dispute that Valdez was competent at the time of plea suggested that Valdez had understood the indictment, his plea, that he had not been coerced to plead guilty, that he which he had discussed with his attorney, and (3) the read and understood English and that he had discussed the government might be prejudiced by the stale recollections of indictment and the plea with his attorney, who, according to witnesses and the need to expend time and money trying the Valdez, had provided him with satisfactory advice. Because case. Valdez has presented no persuasive reason for such a lengthy delay in bringing his motion to withdraw and because there is This Court disagrees with the district court’s third stated no evidence of unusual circumstances surrounding his plea, reason, because there appeared to be no factual basis for the the Court sees no basis to hold that the district court abused court to find that a few months’ delay created by Valdez’s its discretion. guilty plea and subsequent withdrawal would have prejudiced the government. The government always has to spend time C. Valdez’s Claim of Ineffective Assistance of Counsel Is and money trying a case, so this “prejudice” is irrelevant on Not Ripe for Judicial Review. these facts. There also was no finding in the record that key witnesses were no longer available or that the few months’ Valdez argues that he was denied effective assistance of delay had hindered their ability to remember key events. counsel because his trial attorney failed to make clear that Valdez was pleading guilty to kilogram drug amounts rather Nevertheless, the Court agrees with the first two reasons than grams. In theory, claims of ineffective assistance of stated by the district court. First, Valdez’s unjustified 75-day counsel can be raised on direct review. Massaro v. United delay, alone, supported the court’s denial of a motion to States, 538 U.S. 500, ___, 123 S.Ct. 1690, 1696 (2003). withdraw. See United States v. Durham, 178 F.3d 796, 798- Typically, direct review is appropriate where “trial counsel’s 99 (6th Cir. 1999) (“The strongest factor supporting the ineffectiveness is so apparent from the record that appellate district court’s denial of Durham’s motion is the length of counsel will consider it advisable to raise the issue on direct time between Durham’s plea and the filing of his motion to appeal.” Id. Here, Valdez’s trial counsel’s alleged withdraw. Durham waited approximately seventy-seven days ineffectiveness is not apparent from the record. There is little to file his motion after entering his guilty plea.”); Baez, 87 evidence in the record regarding what advice, if any, Valdez’s F.3d at 808 (“The strongest factors supporting the district trial counsel provided with regard to drug quantity, only court’s ruling are the sixty-seven day delay between the Valdez’s assertion that he did not understand the distinction motion and the plea, and Baez’s failure to justify this between grams and kilograms. Such facts are more extensive delay.”). appropriately developed at the district court level. See United States v. Barrow, 118 F.3d 482, 494 (6th Cir. 1997) (“‘The No. 02-3043 United States v. Valdez 17

more preferable route for raising an ineffective assistance of counsel claim is in a post-conviction proceeding under 28 U.S.C. § 2255,’ whereby the parties can develop an adequate record.”) (quoting United States v. Carr, 5 F.3d 986, 993 (6th Cir. 1993)). Accordingly, the Court declines to entertain the merits of Valdez’s claim of ineffective assistance of counsel. III For all the foregoing reasons, the Court AFFIRMS Valdez’s conviction and sentence.