NOT RECOMMENDED FOR PUBLICATION File Name: 18a0225n.06 Nos. 16-6560, 17-5033, and 17-5220 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. BENJAMIN FREDRICK CHARLES ROBINSON, NAVARIUS SAVELL WE STBERRY, and DION TERRY TAYLOR, Defendants-Appellants. ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY

BEFORE: GILMAN, COOK, and GRIFFIN, Circuit Judges. GRIFFIN, Circuit Judge. Defendants trafficked heroin and fentanyl, re sulting in at least two overdoses and one death. They pleaded guilty to various conspiracy-to-distribute counts under 21 U.S.C. §§ 841(a)(1), 846, and the district court imposed significant terms of im prisonment. Robinson and Taylor appeal their sentences, mainly claimi ng the district court erre d in upwardly departing from their respective Guidelines ranges under § 5K2.1 because “death resulted” from their conduct. Westberry appeals the di strict court’s denial of his mo tion to withdraw his guilty plea, and claims ineffective assistance of counsel durin g the plea stage. For the following reasons, we affirm.Nos. 16-6560, 17-5033, and 17-5220, United States v. Robinson, et al.

-2- I. Defendants Benjamin Robinson, Navarius West berry, and Dion Taylor distributed heroin and fentanyl (marketed as, or mixed with, heroin) in Madison County, Kentucky. They promoted their narcotics as a “‘new batch’ from Detroit,” which generally flowed from Westberry to Taylor to Robinson to individual buyers. One of the purchasers, Alyssa Silvia, overdosed on fentanyl (which she believed to be heroin) purchased from Robinson. But for receiving emergency medical treatment, Silvia would have died from her overdose. Corey Brewer was not so fortunate. After his friend purchased what was supposedly heroin from one of Robinson’s associates for thei r collective use, Brewer overdose d, and died of acute fentanyl toxicity. A grand jury indicted defendants for conspi racy to distribute heroin and fentanyl, in violation of 21 U.S.C. §§ 841(a)(1 ), 846 (count 1); conspiracy to di stribute fentanyl resulting in Brewer’s death, in violation of 21 U.S.C. §§ 841(a)(1), 846 (count 2); and c onspiracy to distribute fentanyl resulting in serious bodily injury to Silvia , in violation of 21 U.S.C. §§ 841(a)(1), 846 (count 3). Pursuant to plea deal s, defendants pleaded guilty to some counts in exchange for the government dismissing the remai nder: Westberry pleaded guilty to counts 1 and 2; Taylor pleaded guilty to count 1; and Robinson pleaded guilty to count 3. Westberry moved to withdraw his guilty plea four months later, which the district court denied in a written order. It then sentenced Westberry to life in pr ison. Westberry does not appeal his sentence. Instead, he claims the distri ct court erred in denying his motion to withdraw his guilty plea, and that he received ineffectiv e assistance of counsel dur ing plea proceedings. Robinson and Taylor appeal only their sentences. The distri ct court sentenced them to 220 and 262 months of imprisonment, respectively. In crafting their sentence s, the district courtNos. 16-6560, 17-5033, and 17-5220, United States v. Robinson, et al.

-3- heard testimony regarding the circumstances su rrounding Sylvia’s near death and Brewer’s death; on this basis, it departed upward unde r Guidelines §§ 5K2.1 and 5K2.21 (four levels for Robinson and five for Taylor) because Brewe r’s “death resulted” from their charged, but dismissed, conduct. Robinson and Ta ylor specifically take issue wi th this departure, but they also raise other challenges to their sentences— Taylor contends his sent ence is substantively unreasonable, and Robinson objects to the district court’s restitution order relating to the funeral costs associated with Brewer’s death.
II. We begin with the main issue in this cons olidated appeal, the district court’s § 5K2 upward departures for Robinson and Taylor. U.S. S.G. § 5K2.1 provides that “[i]f death resulted, the court may increase the sentence above the aut horized guideline range.” The Guidelines also contemplate upward departures “t o reflect the actual seriousne ss of the offense based on conduct (1) underlying a charge dismissed as part of a plea agreement in th e case, . . . ; and (2) that did not enter into the determinati on of the applicable guideline range.” § 5K2.21. Following an evidentiary hearing, the district court concl uded upward departures we re appropriate for both Robinson and Taylor because (1 ) it found Brewer’s death “res ulted” from their conduct (§ 5K2.1) and, (2) the Guidelines permitted consid eration of Brewer’s d eath because the plea agreements dismissed the count relating to his death and the death did not play a role in determining the defendants’ Gu idelines ranges (§ 5K2.21). We review a district court’s decision to upw ardly depart in the same way we “judge the procedural and substantive r easonableness of a variance from any guidelines range.” United States v. Erpenbeck , 532 F.3d 423, 440 (6th Cir. 2008) (alterations and citation omitted). That is, we apply the familiar abuse-of-discretion standard. Gall v. United States , 552 U.S. 38, 46Nos. 16-6560, 17-5033, and 17-5220, United States v. Robinson, et al.

-4- (2007). We review the district c ourt’s factual findings for clear er ror and its legal conclusions de

novo. United States v. Bolds , 511 F.3d 568, 579 (6th Cir. 2007).
A. First, Robinson and Taylor both contend the di strict court erred in upwardly departing by utilizing judicial factfinding under the more relaxed prepondera nce-of-the-evide nce standard instead of the most demanding beyond-a-reasona ble-doubt standard. Th eir contentions run headlong into existing adverse precedent. District courts may “consider dismissed a nd acquitted conduct wh en imposing sentences below the statutory maximum.” United States v. Churn , 800 F.3d 768, 780 (6th Cir. 2015). It has long been settled that the government must establish such enhancing conduct by a preponderance of the evidence. See, e.g. , United States v. Watts , 519 U.S. 148, 157 (1997) (per curiam) (“[A] jury’s verdict of acquittal does no t prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.”). Watts remains good law, see, e.g. , United States v. White , 551 F.3d 381, 383–84 (6th Cir. 2008) (en banc), and ap plies equally to char ged, but dismissed, conduct. See United States v. Conway , 513 F.3d 640, 645–46 (6th Cir. 2008). “[S]o long as the ultimate sentence falls with the statutory rang e,” as defendants’ sentences do under 21 U.S.C. § 841(b), “a defendant who enters a plea agreement . . . waives a ny constitutional right to a jury determination of guilt or sentencing facts.” Conway , 513 F.3d at 646. This precedent notwithstanding, defendants claim Burrage v. United States , 134 S. Ct. 881 (2014), and United States v. Rebmann , 321 F.3d 540 (6th Cir. 2003), require “death results” findings to be made by a jury beyond a reasonabl e doubt. However, those cases involved “death results” enhancements that were part and parcel of the elements of the convicted offense. SeeNos. 16-6560, 17-5033, and 17-5220, United States v. Robinson, et al.

-5- Burrage , 134 S. Ct. at 887 (21 U.S.C. § 841(b)’s statutory enhancement); Rebmann , 321 F.3d at 543 (U.S.S.G. § 2D1.1(a)’s base offense levels). 1 That is not what we have here; rather, the district court enhanced defendant s’ Guidelines ranges on the basi s of relevant and not offense conduct. Accordingly, we decline defendants’ invitations to do what we cannot do—disagree with the Supreme Court in Watts , the en banc court in White , and the panel in Conway

. B. Taylor raises a separate challenge to the di strict court’s upward departure. Following the lead of several (but not all) of our sister circuits, Taylor argues § 5K2.1’s “death resulted” enhancement required the district court to fi nd Brewer’s death was either “intended” or “knowingly risked.” See, e.g. , United States v. White , 979 F.2d 539, 544–45 (7th Cir. 1992). Because Taylor failed to raise this ar gument below, we review for plain error. 2 United States v. Yancy , 725 F.3d 596, 600 (6th Cir. 2013). This demanding standard requires Ta ylor to establish (1) error, (2) that is plain, (3) that affects his su bstantial rights, and (4) th at seriously affects the fairness, integrity, or public reputa tion of the judicial proceedings. Id. at 601. He cannot. For one, a “court of appeals cannot correct an error . . . unless the error is clear under current law.” United States v. Olano , 507 U.S. 725, 734 (1993). A lack of precedent “preclude[s a] finding of plain error.” United States v. Al-Maliki , 787 F.3d 784, 794 (6th Cir. 2015). As does a circuit split. Id. Here, there was (and still is) no bi nding Sixth Circuit or Supreme Court

1 This point also distinguishes Robinson’s re liance upon a Seventh Circuit case involving drug-quantity enhancements for a convict ed offense under the Guidelines post- Booker

. See United States v. Macedo , 406 F.3d 778, 788 (7th Cir. 2005).

2 Taylor concedes he failed to raise this is sue below, but nonetheless argues we should exercise our discretion under the ge neral rule that we do not review issues raised for the first time on appeal, and consider his argument de no vo. However, this request conflates the plainerror review standard with our general forfeiture principles. See, e.g. , Thomas M. Cooley Law Sch. v. Kurzon Strauss, LLP , 759 F.3d 522, 528–29 (6th Cir. 2014).Nos. 16-6560, 17-5033, and 17-5220, United States v. Robinson, et al.

-6- precedent requiring a district court to make an “intended” or “knowingl y risked” factual finding, and our sister circuits ap pear to be in discord. Compare White , 979 F.2d at 544–45, with United States v. Bayles , 1993 WL 46892, at *3 n.1 (4th Cir. 1993) (per curiam) (disagreeing with White ). These two independent considerati ons dictate a no-plain-error finding. And even were we to adopt Taylor’s standa rd, we cannot agree the purported error would affect Taylor’s substantial rights. After all, the district court expres sly found Taylor knew “that injuries and death were resulting from the produc t that was being distribu ted” and yet continued to distribute drugs “notw ithstanding that risk that was known.” The record reflects this: The district court heard te stimony from the DEA agent who interr ogated Taylor foll owing his arrest, in which the agent recounted Taylor “mention[ed ] that he knew [the drugs were] killing people,” that Taylor “knew this was wr ong,” that he “knew people were dying,” and that Brewer’s fatal fentanyl came downstream from Taylor’s supply. Put differently, the di strict court’s factual findings were not clearly erroneous , with or without considering Taylor’s requested “intentional or knowingly risked” standard. See United States v. Salyers , 661 F. App’x 862, 866 (6th Cir. 2016).
C. Robinson’s initial brief also hinted at challenging the upw ard departure because “[t]he statute as well as the guidelines had already taken death and seri ous bodily injury into account in determining the appropriate sentence.” Because Robinson failed to develop this point in his brief, we deem it abandoned, see Vander Boegh v. EnergySolutions, Inc. , 772 F.3d 1056, 1063Nos. 16-6560, 17-5033, and 17-5220, United States v. Robinson, et al.

-7- (6th Cir. 2014), and decline to revive it upon r eceipt of his slightly more developed, but still underdeveloped, reply brief. See Sanborn v. Parker , 629 F.3d 554, 579 (6th Cir. 2010). 3
III. Taylor’s final claim on appeal is that th e district court imposed a substantively unreasonable sentence, a claim which we review for abuse of discretion. See United States v. Kamper , 748 F.3d 728, 739 (6th Cir. 2014). A di strict court imposes a substantively unreasonable sentence by “selecting the sent ence arbitrarily, basing the sentence on impermissible factors, failing to consider pertinent § 3553(a) fact ors, or giving an unreasonable amount of weight to an y pertinent factor.” United States v. Webb , 403 F.3d 373, 385 (6th Cir. 2005) (footnotes omitted). Mindful of our institu tional limitations as a reviewing court, we exercise “a great deal of deference” when re viewing a defendant’s sentence for substantive reasonableness. United States v. Mayberry , 540 F.3d 506, 519 (6th Cir. 2008). Although we apply a rebuttable presumpti on of reasonableness to with in-Guidelines sentences, Gall , 552 U.S. at 51, a sentence falling outside the Guidelines is not entitled to a presumption of unreasonableness. Id. We may consider the extent of the district court’s deviation from the advisory range, but still “must give due defere nce to the district c ourt’s decision that the § 3553(a) factors, on a whole, justify the extent of the [departure].” Id.

3 Moreover, Robinson’s argument is meritless. He pleaded guilty to conspiracy to distribute fentanyl resulting in Silvia’s serious bodily injury under 21 U.S.C. §§ 841(a)(1), 846. This carried a twenty-year minimum sentence term under § 841(b)(1)(C), which became his Guidelines range. However, the district court based its upward departure on the dismissed count of conspiracy to distribute fentanyl resulting in Brewer’s death , in violation of 21 U.S.C. §§ 841(a)(1), 846, under §§ 5K1.1 and 5K1.21. Because this conduct “did not enter into the determination of the applicab le guideline range,” § 5K1.21(2), Robinson’s position is without merit. We therefore deny the government’s Mo tion to Strike Argument I in Robinson’s Reply Brief as moot.Nos. 16-6560, 17-5033, and 17-5220, United States v. Robinson, et al.

-8- Among other things, Taylor points to his youth, his relative lack of criminal history, and his immediate acceptance of res ponsibility for why he should have received a sentence of less than 220 months. But what he does not do is tell us why the district court abused its discretion in imposing the sentence that it did, thus abandoning any such argument on appeal. Vander Boegh , 772 F.3d at 1063. Moreover, a review of Judge Reeves’s thor ough sentencing hearing reveals these factors were considered, and that one—Taylor’s cooperation—played a role in him receiving a sentence on the lower end of the adjusted Guidelines range (210 to 240 months). This last point makes it clear Taylor’s real conc ern here is not how the district court weighed th e § 3553(a) factors, but rather the district court’s upward departure in th e first instance. Upon a deferential review of Taylor’s sentencing, we take no is sue with the district court’s 220- month sentence in light of the district court’s reason for upwardl y departing—Taylor’s dealing of heroin a nd fentanyl resulted in the death of one person a nd the injury of others. See, e.g. , United States v. Adkins , 729 F.3d 559, 571 (6th Cir. 2013) (“A district court may place gr eat weight on one factor if such weight is warranted under the facts of the case.”). The dist rict court appropriately considered the advisory nature of the Guidelines and the 240-month stat utory maximum, credited Taylor for mitigating factors, and imposed a reasonable sentence.
IV. The last sentencing aspect of this appeal is Robinson’s terse challe nge to the district court’s imposition of $4,190 in res titution, which represents Brewe r’s funeral expenses. Because Robinson challenges the pr opriety of this award, our review is de novo. United States v. Sizemore , 850 F.3d 821, 824 (6th Cir. 2017).Nos. 16-6560, 17-5033, and 17-5220, United States v. Robinson, et al.

-9- Robinson’s argument, in total, is as follows: The District Court erred in finding the Defendant responsible for restitution in relation to a dismissed charge, Count 2 of the Indictment in the amount of four thousand one hundred ninety dollars ($4,190.00). The initial Presentence Investigation Report did not include the monetary penalt y; but was included after the time for objections had passed. The mone tary penalty is related to Count 2 of the Indictment that was dismissed ag ainst the Defendant/Appellant and is representative of expenses related to th e death of C.B. The Defendant/Appellant did not enter a plea to Count 2 of the Indi ctment and therefore should not be held responsible for a monetary penalty related to Count 2. (And in response to the government’s well-reasoned response, Robinson’s counsel submitted identical language in reply). 4 Such a curt and unexplained po sition, which fails to advance “any sort of argument for the revers al of the district court[],” Geboy v. Brigano , 489 F.3d 752, 767 (6th Cir. 2007), or “cogent” the-district-court -got-it-wrong analysis, “constitutes abandonment.” Burley v. Gagacki , 834 F.3d 606, 618 (6th Cir. 2016); see also White Oak Prop. Dev., LLC v. Washington Twp. , 606 F.3d 842, 850 (6th Cir. 2010) (noti ng a “perfunctory” and “nebulous” argument renders an issue forfeited). Abandonment notwithstanding, Robinson’s argu ment borders on frivolity. Under the Mandatory Victims Restitution Act, “if someone is convicted of a conspiracy, the court can order restitution for damage resulting from any conduct that was part of the c onspiracy and not just from specific conduct that met the overt act re quirement of the cons piracy conviction.” United States v. Elson , 577 F.3d 713, 723 (6th Cir. 2009) (citat ion omitted). It may not, however, include “injuries caused by offenses that are not part of the conspiracy of which the defendant has been convicted.” Id. (brackets and citation omitted). He re, the district court permissibly concluded Brewer’s death resulted from the cons pirators’ conduct, and R obinson agreed that he

4 We acknowledge Robinson did object to the imposition of restitution on these grounds, which the district court overruled.Nos. 16-6560, 17-5033, and 17-5220, United States v. Robinson, et al.

-10- conspired to distribute fenta nyl in Kentucky during the time period encompassing Brewer’s death. Therefore, the district court properl y imposed restitution under 18 U.S.C. § 3663A. Id. at 723–24.
V. Finally, defendant Westberry raises two related non-sentencing claims on appeal. Westberry contends the district c ourt abused its discretion when it denied his motion to withdraw his guilty plea, and that his attorney provided him constitutionally deficient performance during the plea stages. 5 We affirm the district court’s denial of Westberry’s motion to withdraw, and decline to address his ineffective-assistance claim.
A. We review a district court’s decision denyi ng a motion to withdraw a guilty plea for an abuse of discretion. United States v. Benton , 639 F.3d 723, 726–27 (6th Cir. 2011). A district court abuses its discretion when it “relies on e rroneous findings of fact, applies the wrong legal standard, misapplies the correct legal standard when reaching a conclusion, or makes a clear error of judgment.” Reeb v. Ohio Dep’t of Rehab. & Corr. , 435 F.3d 639, 644 (6th Cir. 2006). It is well-established that “[a] defendant has no right to withdraw his guilty plea.” United
States v. Martin , 668 F.3d 787, 794 (6th Cir. 2012). Instea d, Federal Rule of Criminal Procedure 11 permits the withdrawal of an accepted guilty plea upon a showing of a “fair and just reason for requesting the withdrawal.” Fe d. R. Crim. P. 11(d)(2)(B). “[T] he aim of the rule is to allow a hastily entered plea made with unsure heart and confused mind to be undone, not to allow a

5 Under the terms of his plea agre ement, Westberry waived his “r ight to appeal the guilty plea and conviction.” However, the government does not seek to enforce this appeal bar because Westberry’s challenge amounts to a claim that his plea was neither knowing nor voluntary on account of ineffective as sistance of counsel.Nos. 16-6560, 17-5033, and 17-5220, United States v. Robinson, et al.

-11- defendant to make a tactical decision to ente r 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. Alexander , 948 F.2d 1002, 1004 (6th Cir. 1991) (citation and internal quotation marks omitted). In examining this “fair and just reason” standard, we consider the totality of the circumstances, including the following seve n factors set forth in United States v. Bashara : (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 prejudi ce to the government if the moti on to withdraw is granted. 27 F.3d 1174, 1181 (6th Cir. 1994). “The factors ar e a general, non-exclus ive list and no one factor is controlling.” United States v. Bazzi , 94 F.3d 1025, 1027 (6th Cir. 1996) (per curiam). “The relevance of each factor wi ll vary according to the circumstances surrounding the original entrance of the plea as well as the motion to withdraw.” United States v. Haygood , 549 F.3d 1049, 1052 (6th Cir. 2008) (citation and in ternal quotation marks omitted). Following his December 2015 indictment, We stberry and the government began plea negotiations. The parties eventually came to an agreement, and brought it before the district court on June 24, 2016, for a rearraignment and ch ange-of-plea hearing. Ho wever, the district court adjourned the hearing afte r Westberry indicated he did not “understand the process,” was “anxious,” and had a hard time comprehending the proceeding. On August 15, 2016, Westberry reappeared before the district court and entered a guilty plea to conspiracy to distribute heroin and fentanyl, in violation of 21 U.S.C. §§ 841(a)(1), 846, (count 1) and conspiracy to dist ribute fentanyl resulting in Brew er’s death, in violation of 21 U.S.C. §§ 841(a)(1), 846 (count 2). Before ta king the plea, the dist rict court confirmed,Nos. 16-6560, 17-5033, and 17-5220, United States v. Robinson, et al.

-12- among other things, Westberry’s educational b ackground, his mental-health history, and his history of drug and alcohol use. Westberry ag reed he understood the charges against him, indicated he was satisfied with his attorney’s advice and performance, and acknowledged he had read and understood the terms of his plea agreem ent. As pertinent for his claim on appeal, Westberry admitted that he distributed fentanyl that resulted in Brewer’s death (but contended he believed it was heroin). The district court then accepted his guilty plea. A week later, Westberry’s attorney moved to withdraw as counsel. Among other reasons, she claimed that, “after Mr. Westberry’s entry of a plea, he called cha llenging the actions of counsel and the validity of the plea.” The district court c onducted a hearing on August 29, 2016, and allowed Westberry’s attorney to withdraw . During the hearing, Westberry indicated his dissatisfaction with his counsel fo r not pursuing a medical expert to test the validity of the link between the fentanyl taken by Br ewer and his death. He essent ially requested an evidentiary hearing on Brewer’s cause of death. Yet, when asked whether he anticipated requesting to withdraw his guilty plea, Westberry responded that “I never wanted to withdraw my guilty plea.” More than three months after indicating to the contrary, Westberry then moved to withdraw his plea on December 6, 2016. In support, Westberry blamed his former attorney’s lack of attention to his case, faulted her for not pursuing a medical expert , claimed he agreed to plead guilty because he “was overwhelmed w ith fear and confusion,” and contended his counsel’s failures left him with no choice but to plead guilty. For the first time, he also espoused his innocence. At a hearing on his motion, Westbe rry tried to justify the delay in filing his motion to withdraw on the basis that he was tryi ng to secure money to hire a medical expert, claimed he was under the influence of Xanax during his plea hearing, and argued he had expected to have an evidentiary hearing regarding Brewer’s cause of death.Nos. 16-6560, 17-5033, and 17-5220, United States v. Robinson, et al.

-13- The district court denied Westberry’s motion in a comprehens ive and well-reasoned written order. It concluded We stberry “wholly failed to estab lish any legitimate reason which would justify setting aside his prior guilty plea,” finding none of the Bashara factors weighed in his favor. First, 112 days had elapsed betw een his guilty plea and his motion. Second, the district court rejected Westberr y’s reasons for his failure to ti mely move for withdrawal, noting his attorney’s performance and the medical-exp ert issue were known to Westberry before he pleaded guilty and that he expressly disavowed a plea-withdrawal moti on two weeks after. Third, Westberry did not maintain his innocence ove r the course of the proceedings. Fourth, the district court concluded the circumstances of West berry’s plea entry did not justify relief, again noting Westberry could have raised his concer ns earlier and accepting Westberry’s new position would require the court to discar d his earlier statements under oath that he understood what he was pleading to (and after the court gave Westberry an additional month to consider the plea offer). Fifth, it found Westberry ’s background did not support a claim that he was unable to understand the proceedings, and sixth, concluded his pr ior, relevant experience with the criminal justice system suggested he understood the na ture of the process and was aware of the consequences of his plea. These conclusions are well-supported in the record and in our case law. Take, for example, the district court’s conclusion regard ing the length and explanation for the delay. Westberry waited over one hundred da ys to file his motion, and “[ w]e have consistently found shorter periods to be excessive.” Martin , 668 F.3d at 795 (collecting ca ses, and noting a delay of ninety-five days “weigh[e d] against withdrawal”). Nor do we ta ke issue with the district court’s finding that Westberry knew about the issues su pporting his motion before he pleaded guilty, or fault the district court for rely ing upon Westberry’s post-plea asser tion that he did not want toNos. 16-6560, 17-5033, and 17-5220, United States v. Robinson, et al.

-14- change his plea in light of the same issues. And more to th e point, “[w]hen a defendant has entered a knowing and voluntary plea of guilty at a hearing at which he acknowledged committing the crime, the occasion of setting aside a guilty plea should seldom arise.” United States v. Ellis , 470 F.3d 275, 280 (6th Cir. 2006) (citation omitted). As the district court ably considered Westberry’s motion, we agree this case does not presen t such a rare circumstance. For these reasons, and for those ar ticulated by the district court, the district court did not abuse its discretion in concluding the Bashara factors did not support the withdrawal of a guilty plea.
B. Westberry also faults the district court for “f ail[ing] to address the apparent violation of Appellant’s right to the effectiv e assistance of counsel.” In hi s view, his attorney failed to provide an adequate defense during plea negotiati ons because she did not adequately investigate the circumstances surrounding Brewer’s death (Wes tberry argues there is a possibility something other than fentanyl killed Brewer) and that but for his attorney’s failures, he “would have never entered the plea agreement.” Our typical approach to ineffective-assistance claims on direct appeal is to decline to address such claims unless “trial counsel’s ine ffectiveness is apparent from the record.” Martin , 668 F.3d at 797. We see no reason to deviate from that approach here, because the record is woefully deficient and counsel’s ineffectiveness is not apparent . The district court held no evidentiary hearing regard ing a claim of ineffective assistance of counsel; indeed, th ere is little in the record regarding the medical-testing issue, a nd more importantly, his prior attorney did not testify. See, e.g. , United States v. Sypher , 684 F.3d 622, 626 (6th Cir. 2012). And there is good reason why the record is undeveloped for an ineffective-assistance claim—Westberry neverNos. 16-6560, 17-5033, and 17-5220, United States v. Robinson, et al.

-15- expressly raised one below. See United States v. Levenderis , 806 F.3d 390, 401–02 (6th Cir. 2015). We therefore decline to a ddress his ineffective-assistance claim in this direct appeal.
VI. For these reasons, we affirm the district court’s judgments.