NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0177n.06 No. 10-4585 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

United States of Am eric a,

P laintif f-App ellee, V. Thomas F ranklin , Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ) O N AP P EAL F ROM THE UNITED STAT ES DIS TRICT C O U R T F O R T H E SOUTH ERN DISTRICT OF OHIO O P I N I O N

BEFORE: DAUG HTREY, MOORE, an d McK EAGU E, Circuit Judges. McK EAGU E, Circuit Judge. Def endant Thomas Fr anklin appea ls his conviction for conspirac y to distribute over five ki logr ams of cocaine in violation of 21 U. S

. C

. § 8 4 6 (the “drug statute”) and the possession of a firea rm in further ance of said conspirac y in violation of 18 U.S.C. § 924(c) (1)( A)(i) (the “fire arm statute” or “§924(c )”)

. Specifica lly , Fr anklin challeng es the district court’s denial of his motion to withdraw his guilty plea for vi o l at i n g the firea rm statute. We AF F IRM the district court’s de nial of F ranklin’s motion to withdraw his guilty plea. I. BACKG ROUND On J uly 23, 2009, pursuant to a plea ag ree ment, Fr anklin enter ed guilty pleas for violating both the drugstatute and the f irea rm statute. R. 645, Minutes; R. 1089, Transcript. Althoug h Fr anklin’s plea a g ree ment contained a provision for a pote ntial motion for downwar d depar tureNo. 10-4585

USA v. Thomas Franklin pursuant to 18 U.S.C. § 3553(e), U .S.S.G. § 5K1.1, or Rule 35 of the F eder al Rules of Criminal Procedur e, it emphasized that the United States Attorne y reta ined sole discre tion reg arding whether such a motion would be filed. R. 623, Plea A g ree ment, p. 8. At the cha

ng e of ple a hea

ring , Fe dera l Bure au of I

nvestig ation Ag ent Rick Woz niak provided the f

ollowing f

actua l backg round: On August 14, 2008, a traf fic stop was c onducted on a vehicle oc cupied by Guzman Chavez. The traf fic stop was c onducted a fter Guzman Chavez was observe d meetingwith [ Def endant] Fra

nklin . . . . On September 16, 2008, sea rch war rants we re e x ecute d at two re sidence s in Colum bus, Ohio controlled by Fr anklin, 3626 Easton L oop West and 1417 Fa hy Drive. $25,400 in c ash wa s seized from the F ahy

Drive a ddress, a s well as five firea rms, scale s, a money counter , coca ine tester a

nd 41.66 g rams of c ocaine . . . . Those fire arms included a HI Standard, 22 c aliber r evolver , serial number 676332; a 40 ca liber pistol, serial number SXD62356; a G lock .45 ca liber pistol, serial number B KN899; a Rug er .357 caliber

revolve r, ser ial number 152-97744; a nd a Da vis, .38 caliber pistol, serial number

D040085. In total, investigating a g ents have documented that Fr anklin conspired w ith . . . others to distribute and possess with intent to distribute betwee n more than 15 kilog rams but less than 30 kilog rams of c ocaine

. . . and in furthe ranc e of that drug traff icking conspirac y

possessed the f

ive firea rms seized from his Fa

hy Drive r esidenc e. R. 1089, 7/23/09 C hang e of Plea Transc ript, pp. 17-19. When the district court aske d if any part of A g ent Woz niak’s stateme nt was incorr ect, Fr anklin’s attorne y

responde d: “I

want to re iterate for the r ecor d that the five f irea rms wer e not possessed by

Mr. Fr anklin. Two of the f irea rms — the .40 and the .45 c aliber — w ere his guns. The other s he had no c laim in.” Id. at 19. The district c ourt then aske d Fr anklin, “So with the exception that was just made [by y our attorne y ], Mr. Franklin, wa s the statement cor rec t? ” Id. at 20. Fr anklin responde d aff irmatively

. Id. The district cour t continued: “Ar e you offe ring to plead guilty

to possession of a fire arm in fur thera nce of a drugtraff

icking crime be cause y ou - 2 -No. 10-4585

USA v. Thomas Franklin actua lly committed that offense ? ” Id. Fr anklin ag ain re sponded af firmatively

. Id. The district court obser

ved that F ranklin “showe d some hesitation,” and the ref ore told F ranklin that “I

want to be clea r this is y our intention.” Id. Yet ag ain, Fr anklin responde d aff irmatively

. Id. at 21. The district cour

t concluded the hear ing by finding that “the plea

has bee n made voluntar ily , with a full under standing of the nature of the char g es and the conseque nces of the offe red ple as of g uilty .” Id. On Marc h 10, 2010, befor e F ranklin’s sente ncinghear ing, this Court ruled that a mandatory

consec utive sentenc e could not be imposed f or a violation of § 924( c) where a defe ndant also fa ced a

g reater mandatory

minimum sentenc e on anothe r cha rg e, base d on our decision in United States v. Almany , 598 F.3d 238 ( 6th Cir. 2010). Be cause the drug statute

car ried a ten-year mandatory

minimum sentenc e and the firea rm statute ca

rried a five-year mandatory

minimum sentenc e, F ranklin wa s then fac ing only a mandatory

minimum sentenc e for violating the dr

ug statute. The Gove rnment filed a

motion for downwar d depar ture pursua

nt to U.S.S .G. § 5K1.1. Be cause the motion was not pursuant to 18 U.S.C. § 3553(e), it did not affe ct the ten- y ear mandatory

minimum sentenc e for

the drugsentenc e. B eca

use, under

the then-bindingdecision of this Court in Almany , the fire arm statute no long er justified a mandatory

minimum sentenc e, the United States soug ht a two-leve l enhanc ement pursua nt to U.S.S .G. § 2D1.1(b) (1) on that char g e. R. 10001, Motion, p. 1. Fra nklin’s resulting se ntencing g uideline ra

ng e wa s 135 to 168 months, and the Gover

nment rec ommended a two- level downwa rd depa rture tha t would have reduc ed the guideline ra

ng e to 120 to 135 months. Id. at 5.

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USA v. Thomas Franklin At Fr anklin’s sentenc ing he aringon May 11, 2010, Fr anklin’s counse l reque sted a continuance to become mor e fa miliar with Almany . Minute Entry of Sentenc ing H ear ing, 5/11/10. During the continuanc e, F ranklin re tained new counsel, R. 1029, Substitution of Counsel, and then filed a

motion to wit hdrawhis guilty plea f or violating the fire arm statute on May 28, 2010. R. 1078, Motion t o Wit hdrawPlea; R. 1336, Transcr ipt of Defe ndant’s Motion to Wi thdraw Guilty

Plea, pp. 14-16. The district cour

t held an evide ntiary

hear ing on F ranklin’s motion to withdraw his guilty plea f or violating the fire arm statute on August 3, 2010. R. 1173. At the hearing , Fr anklin claimed that, while he owned two g uns, both of his firea

rms wer e kept in his bedroom, and he neither c arr ied a gun nor used a g un in further ance of drugactivity . R. 1336, Transcr ipt of Def endant’ s Motion to W ithdraw Guilty Plea, pp. 17, 22-23. F ranklin explained his rationale f or enter ing a guilty plea f or violating the fire arm statute a s follows: Iwas told by

Sam Weiner [Franklin’s pre vious attorney ] t hat if I pled g uilty

to the 924(c) and the c onspiracy , that the g overnme nt would file a motion, a 5K1 motion, for me, and it would apply to both charg es, and the re w ould be no long er any g uideline ra

ng es. Nothing would matter. I t would all be left up to the Judge. Id. at 8. Fr anklin further

stated: “the only

rea son Ipled g uilty

was the 5K

was supposed to be filed ac ross the boar d.” Id. at 17. Fr anklin admitted, howeve r, that a total of f ive g uns were seized from his residenc e, including one on top of the re frig erator in the kitchen. Id. at 23-24. He also ac knowledg ed that a sack c ontaining 41.66 g rams of c ocaine was discove red in the kitche n cabine t of his home. Id. at

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USA v. Thomas Franklin 24. Fr anklin admitted he wa s awa re the g un in the kitchen existed, but he attributed it to his fianc ee. Id. Fr anklin pleade d ignor ance reg ardingthe coc aine. Id. After Fr anklin’s testimony , the district court noted: “ Icould ac cept the f acts a s the defe ndant see s them and still not be sure that . . . would prove the fa ctual innoce nce of these char g es.” Id. at 46. Acc ording ly , the district court dire cted both par ties to brief “ whether

the fac ts at the colloquy

sufficie ntly

establish a 924(c ) violation.” Id . After rec eiving their submissi ons, the district court issued an or der de nying F ranklin’s motion to withdraw his g uilty plea f or violating the fire arm statute. R. 1289, Orde r. Be fore Fr anklin’s final sente ncinghear ing on D ece mber 14, 2010, the United States Supreme Court re verse d Almanyby holding “ that a def

endant is subject to a ma

ndatory , consec utive sentenc e for

a § 924(c ) convic tion, and is not spared fr om that sentence by virtue of

rec eiving a hig her ma

ndatory minimum on a diffe rent c ount of conviction.” Abbot v. United States , 131 S. Ct . 18, 23 (2010). Thus, unde r Abbot , Fr anklin ag ain fa ced a five-year mandatory sentenc e for

violating the f

irea rm statute as c harg ed in the indictment. At sentenc ing, to e nsure that the district c ourt was not re quired to impose § 924(c )’s five

y ear mandatory

consec utive sentenc e, the Gove rnment ora lly modified its prior substantial assistance motion so t hat 18 U.S.C. § 3553(e) w ould apply to the firea

rm statute count. R. 1337, Transc ript, p. 6. The district cour t gr anted the G overnme nt’s motion and sentence d Fr anklin to ten y ear s’ imprisonment for violating the drugstatute, followed by a ten- month consecutive sentenc e for

violating the f

irea rm statute. Fr anklin then filed a timely notice of a

ppeal. R. 1313, Notice of Appea l. - 5 -No. 10-4585

USA v. Thomas Franklin On appe al, Fr anklin urg es this Court to reverse and re mand the district cour t’s denial of his moti on to withdraw his guilty plea f or violating the fire arm statute. II. ANALYSIS A. Stand ard of Review and Ap plicabl e Law This Court reviews a

district court’s de nial of a motion to withdraw a g uilty plea unde r the abuse -of- discretion standa rd. United States v. Hay

good , 549 F.3d 1049, 1052 ( 6th Cir. 2008). “Adistrict court abuse s its dis cre tion where it relies on clea rly err oneous finding s of fa ct, or whe n it improperly

applies the lawor uses a

n err oneous leg al standar d.” Id. (interna l quotation marks omitted). Pursuant to the Fe dera l Rules of Criminal P roce dure, a defe ndant may

withdraw a

g uilty plea be fore sentenc ing only if he “ can showa fa ir and just rea son for re questing the withdraw al.” F E D . R. C R I M . P. 11(d)( 2)(B ). In United States v. Bashara , 27 F.3d 1174 ( 6th Cir. 1994), this Court identified a non-e x haustive multi-fac tor balanc ing te st to guide district c ourts in deter mining whe ther to g rant a defe ndant’s motion to withdraw a guilty plea. The Bashara fac tors are : (1) the a mount of time that elapsed be tween the plea a nd the motion to withdraw it; (2) the pre sence (or a

bsence ) of a

valid rea son for the f

ailure to move f

or withdrawa l ear lier in the proc eeding s; (3) whe ther the de fenda nt has asser

ted or maintained his innocenc e; (4) the circ umstances unde rlying the entry of the guilty plea; (5) the def

endant’ s nature a

nd background; (6) the deg ree to which the defe ndant has ha d prior experienc e with the cr iminal just ice sy stem; and (7) potential prejudice to the g overnme nt if the motion to wit hdrawis gr anted. Bashara , 27 F.3d a

t 1181. I n weig hing the se fa ctors, “[n]o one fac tor controls; the list is gene ral and nonexclusive.” United States v. Bazzi , 94 F.3d 1025, 1027 ( 6th Cir. 1996). Furthe r, “[t] he - 6 -No. 10-4585

USA v. Thomas Franklin rele vance of ea ch fa ctor will vary acc ording to the circ umstances surr ounding the orig inal entra nce of the plea a s well as the motion to withdraw.” Haygood , 549 F.3d at 1052 (internal quotation marks omitted). Fina lly , “[p] lea withdra wals should g ener ally

not be allowed where a defe ndant has made a tac tical dec ision to enter a plea , waited se vera l weeks, a nd then believe s he made a bad choic e in pleadingg uilty .” Id. at 1252-53 (inter nal marking s omitt ed). B. The District C ourt P roperly De nied Fr ankl in’s Motion to Withdraw his Guilty Ple a The district cour

t’s order denying F ranklin’s motion to withdraw his guilty plea of fer ed a thoroug h and appr opriate e x amination of the seve n Bashara fac tors. This Court ag ree s with the district court’s a

naly sis. As such, we f

ind that Fra

nklin’s motion t o withdraw his guilty plea f or violating the f

irea rm statute should be denie d. Our e x amination of the district cour t’s analy sis of

eac h Bashara fac tor follows. First, the district cour

t found that the 300-da

y lapse be tween the date F ranklin ente red his g uilty plea a nd the date he moved to withdraw it we ighe d in favor of denying F ranklin’s motion. R. 1289, p. 8. As the district court obser ved, F ranklin off

ere d leg itimate expl anations for the leng thy delay , including his inability to contact his lawyer a

nd his reliance on his lawy er’ s repr esentations that the Government would f ile a downwa

rd depa rture motion for the firea

rm count. Id. I n addition, the intervening Almanydecision also contr ibuted to the delay

. Nonethele ss, as the district court noted, this Court has dete rmined that dela y s of substantially

less time support the denial of a motion to wit hdrawa guilty plea. See , e.g. , United States v. Goldberg , 862 F.2d 101, 104 ( 6th Cir. 1988) (dec rying a “leng thy 55-day delay” in filing a motion to withdraw his g uilty

plea) ; United States v. Spe ncer , 836 F.2d 236, 239 ( 6th Cir. 1987)

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USA v. Thomas Franklin (deny ing a motion to wit hdrawa guilty plea a fter a

five-w eek de lay

). As such, the district court proper ly conclude d that “the sig nificanc e of this delay cannot be totally

ignor ed.” R. 1289, p. 9. L ikewise, this Court finds that the 300-day delay weig hs ag ainst g rantingFr anklin’s motion to withdraw his guilty

plea. Second, and r elatedly , the district court prope rly conclude d that Fr anklin did not have a valid rea son for fa iling to move for withdrawa l ear lier in the proc eeding s. The district cour t found that F ranklin is at least par

tially motivated in attempting to withdra w his plea ba sed on his rea liz ation that the plea a g ree ment he had e ntere d is not working in his favor, despite the f act that he indicated at the chang e of ple a hea ring that he under stood that filing or not filing a downwar d depar

ture motion was within the Gover nment’s sole discre tion. Id. As the district court e x plained, F ranklin’s strateg ic appr oach violate s Rule 11(d)(2) (B )’s g oal of “ allow[ing] a hastily enter ed plea

made with an unsur e hea rt and mind to be undone, not to allow a def

endant to make a tac tical dec ision to enter a plea , wait seve ral we eks, and the n obtain a withdra

wal if he believes he made a bad choic e in pleadingg uilty .” United States v. Ellis , 470 F.3d 275, 280 ( 6th Cir. 2006) (interna l quotation marks omitted). The third Bashara fac tor asks“whether the def endant ha s asserte d or maintained his innocenc e.” Bashara , 27 F.3d at 1181. Here , the district court noted that Fra nklin “demonstrate[d] a subjec tive belief on his par t that he is innocent” be cause he did not car ry a firea rm in relation to a dr

ug traff icking offe nse. R. 1289, p. 11. The district court prope rly

rec og nized, however , that the fire arm statute “ criminalizes conduct beyond simply car rying a firea rm in relation to a dr

ug crime.” Id. I ndeed, § 924( c) a lso criminalizes possession of a

- 8 -No. 10-4585

USA v. Thomas Franklin firea rm in such a wa

y that helps “for

war d . . . promote [or] advance” the under ly ing dr ug offe nse. See U nited States v. Krouse , 370 F.3d 965 ( 9th Cir. 2004), cert. de nied , 543 U.S. 988 (2004); see also , United States v. Mac key , 265 F.3d 457, 460 ( 6th Cir. 2001), cert. de nied , 534 U.S. 1097 (2002). Ultimately , the district court we ighe d this factor in F ranklin’s fa vor. R. 1289, p. 13. The district cour

t found that the four

th fac tor — the circ umstances unde rlying the entry of the g uilty plea — “ weig h[ed] in favor of the Gover

nment and denia l of Def

endant’ s motion.” Id. at 11. As the district cour t expl ained, F ranklin “indicated that he unde rstood his rights a nd was voluntarily

waivingthem. He a lso indicated that he unde rstood the mandator y minimum sentenc e he f

ace d for plea ding g

uilty . . . and that it was c ompletely within the Governme nt’s discretion to file a

motion for downwar d depar ture.” Id. Given this rec ord, this Court ag ree s with the district court that F ranklin’s guilty plea wa s made knowing ly and voluntarily

and, conseque ntly , finds that this factor a lso weig hs ag ainst Fra nklin’s motion. Next, the dist rict cour

t found that fac tors five a nd six eff ectively neutra liz ed ea ch other : “De fenda nt is a high sc hool gr aduate and attende d colleg e for two y ear s. Whi le he ha s had some contac t with the criminal justice sy stem, the instant case is the first time he has be en a de fenda nt in fede ral c ourt.” Id. at 12. This Court ag ree s with the district court’s conc lusion: at the very least, F ranklin’s e ducational ba ckg round and his cr iminal hist ory sug g est that he unde rstood the signific ance of filing a guilty plea, a nd these fa ctors ther efor e support the district cour t’s denial of F ranklin’s motion to withdraw it. Finally , the district court c oncluded that “ the seve nth fac tor weig hs slightly in favor of

the Gover nment . . . as the Gove rnment would be pr ejudiced should De fenda nt’s motion be gr anted.” - 9 -No. 10-4585

USA v. Thomas Franklin Id. at 12-13. The district court explained: “In this reg ard, the Gover nment has indicate d that

sever al of De fenda

nt’s co-de fenda

nts have a g ree d to testify

ag ainst him, but m any

of these c odefe ndants have alre ady

been se ntence d and sent to prison.” Id. at 13. This Court finds the district court’s re asoning on this point compelling ; the Gover nment’s

case ag ainst Fra

nklin would suffer if

he we re a llowed to withdraw his guilty plea be cause , due to the leng thy

passag e of time, the G overnme nt’s pool of witnesses is less ce rtain. Even so, this fac tor is moot given this Court’s finding s that the other six factors we igh a g ainst Fra nklin. See United States v. Spe ncer , 836 F.2d 236 ( 6th Cir. 1987) (“[T]he gove rnment is not require d to establish prejudice that would result from a plea withdra

wal, unless and until the def endant advanc es and e stablishes a fa ir and just rea son for a llowing the w ithdrawa l . . . .”). I n sum, this C ourt finds that the district court pr operly denied F ranklin’s motion to withdraw his plea

for violatingthe fire arm statute.

III. CONCLUSION Be cause the district court prope rly applied the c orre ct law a nd corr ectly

evalua ted the rele vant fa cts, we AF F IRM the district court’s de nial of F ranklin’s motion to withdraw his guilty plea f or violating the fire arm statute.

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