NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0257n.06
No. 11-1627
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. SERGI O VARGAS-GU TI ERREZ, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRICT COURT FOR THE WES TERN DI STRI CT OF MI CHI GAN

OPI NI ON

Before: COLE and STRANCH, Circuit Judges; CARR , District Judge. *
JANE B. STRANCH, Circuit Judge

. Def endant Serg io Var g as-Gutier rez appea ls the district court’s (1) denial of his motion to withdraw his g uilty plea and (2) imposit ion of a sentenc ing enhanc ement for obstruction of justice. Finding no clea r err or in the district court’s deter minations,

we AF F IRM

. I. BACKG ROUND On October 6, 2010, Var g as-Gutier rez was named in a two-count indictment for conspirac y
to distribute and possess with intent to distribute five or more kilogr ams of coca ine, and possession of a firea rm in further ance of a drug traff icking crime. On November 30, 2010, he pled g uilty to the conspirac y char g e in exchang e for the Gover

nment’s ora l promise to dismi ss the firearm offense. The plea hear ing proce eding s wer e translated to and from Spanish, Var g as-Gutier rez’s primary

The Honora

ble J ames G. Carr, Senior United States District J udg e for the Norther n District * of Ohio, sitting by

desig nation.No. 11-1627

USA v. Se rgio Vargas-Gutierrez lang uag e. During the hear ing, the court asked Var g as-Gutier rez sever al questions about whether his participa tion in the conspiracy was voluntary : THE COURT: Mr. Var g as-Gutier rez, did y ou participa te in this conspirac y of y our own fre e will? THE DEF ENDAN T: Yes. THE COURT: And no one w as for cing y ou to do this? THE DEF ENDAN T: No. THE COURT: Did y ou expect to ge t any thing out of it y ourself? THE DEF ENDAN T: No. THE COURT: Okay . Did y ou expect any money or any coca ine for y ourself? THE DEF ENDAN T: He just paid me for having it there a t my

house. THE COURT: All r ight. So he paid y ou some money to use y our house basica lly ? THE DEF ENDAN T: Yes. THE COURT: All rig ht. Nobody was putting a g un to y our head or forc ing y ou or threa tening y ou in any

way to do this? THE DEF ENDAN T: No. The court also asked specific questions about Var g as-Gutier rez’s role in the conspirac y and g ave a detailed acc ount o f the implications of his plea and how the proce ss would continue afte r the hear ing:
THE C OURT: All rig ht

. Be ca u s e if I g o ahea d and acce pt y our guilty plea today , then there will not be a trial next wee k, there will be no fu rt h er presumption of innocenc e, those protec tions will be g one, and the only thing left to do in y our ca se will be to se ntence y ou. And that sentenc e will include at least 10 y ear s in prison. Do y ou understand tha t? THE DEF ENDAN T: Okay

. THE COURT: Okay ? Do y ou have a ny questions about that? THE DEF ENDAN T: No.
Va rga s -G u t i errez did not express any confusion or reluc tance during the hear ing or make any
sug g estion that he sol d drug s under duress. At the conclusion of t he hearing , the court found t hat
“Mr. Va rg as-Gutier

rez is tendering the g uilty plea f ree ly and voluntarily .”

2No. 11-1627

USA v. Se rgio Vargas-Gutierrez The Probation Offic e submitt ed a Presentenc e I nvestig ation Report (“PSR”) on J anuar y 19,
2011. Despite his g uilt y p l ea , t h e P S R declined to apply a two-leve l reduc tion for acc eptanc e of responsibility beca

use Var g as-Gutier

rez “minimiz ed his role and involvement” and “re lated he was forc ed to participa te .

. . despite sev er al opportunities to withdraw from the conspiracy .” Var g asGutierre z objected on the g rounds that he was improperly denied this reduc tion as well as a reduc tion for a mitigating role. His sentenc ing memorandum included his insistence of being threa tened into participa ting in the conspirac y as well as the fac t that he had maintained this position to his attorney , the prosec utor, and the probation office r (althoug h it also notes that “eve ry one expressed disbelief”

to his claims during his pre- plea proff er)

. The Gover

nment responde d on Fe bruar y 25 in support of the P SR. On M arc h 1, the court issued a noti ce stating Varg as-Gutierre z ’s al l ega t ion of coercion
“ra ises not only a question of acc eptanc e cr ed i t , b u t als o the issue of whether an obstruction enhanc ement is w arr anted.” The notice instructed the parties to “be prepa red to a ddress that at the

sentenc ing he aring ,” sche duled for the same da y . Rather than addre ss this issue at the hear ing, Var g as-Gutier rez’s attorn ey instead orally notified the court that her client wished to withdraw his g uilty plea beca use “he maintains that he’s

not g uilty ” and did not fully understand the hear ing in which he pled g uilty due to translation problems and his inability to “under stand subtle n u an ce s ” o f the law. The court appointed new

co u n s el an d held a hear ing on May 4 (her einaf ter “Motion/Sentencing Hea ring ”), during which
Var g as-Gutier

rez testified under oath that he had been forc ed to participa te in the conspirac y due to death threa ts ag ainst himself and his family

. He further testified t h at , althoug h he had alway s maintained his innocenc e to his attorney and the prosec utor, he pled g uilty beca use “the y said that 3No. 11-1627

USA v. Se rgio Vargas-Gutierrez I had to plead g uilty and they would drop some char g es ag ainst me.” He did not mention the alleg ed duress d u ri n g the pl ea hear ing beca use hi s “attorne y and the prosec utor said that they didn’t want
to l i s t en to me s ay befor e the judge that I had been t hrea tened.” Var g as-Gutier rez did not call his attorney , family members, or any other witnesses at t he Mot i o n / S en t en cing Hea ring in support of these claims. The Gover nment called sever al witnesses wh o contra dicted Var g as-Gutier rez’s testimony

. The trial court denied Var g as-Gutier rez’s reque st to withdraw his g uilty plea afte r finding his testimony to be incre dible and “belied by overw helming evidenc e to the contra ry .” This evidenc e included Var g as-Gutier

rez’s statements at the ear lier hear ing, statements on other occa sions, testimony by the witnesses, his str ai n ed re l ationship with his family , the nature of the drug

transac tions, and the fac t that loaded wea pons wer e found at his home. As the court transitioned to
sentenc ing during the Motion/S entenc ing Hea ring , it relied on these same conclusions in imposing

a sentenc ing enhanc ement for obstruction of justice. Ultimately , the court calc ulated a Guideline’s
rang e of 235 to 293 months but varie d downwar d “modestly ” to impose a sentenc e of 210 months

to avoid sentenc ing disparities and becau s e “i t’s his first offe nse in the drug world.” Var g asGutierre z filed a timely appea l, challeng ing only the court’s ref usal to all ow him to withdraw his
g uilty plea a nd the impositi on of the obstruc tion of justice enhanc ement. II. DISCUSS ION
A. Withdraw al of

Guilty P lea This Court revie ws the district court’s denial of a motion to withdraw a g uilty plea for abuse of discretion. United States v. Haygood , 549 F. 3 d 1 0 49, 1052 (6th Cir. 2008). “A district court 4No. 11-1627

USA v. Se rgio Vargas-Gutierrez abuses its discretion wher e it relies on clea rly err oneous find i n gs o f fac t, or when it improperly applies the law or uses an err oneous leg al standard.” Id. (interna l quotation marks and citation omitted). “Unde r Fe dera l Rule of Criminal Proc edure 11(d), a defe ndant may withdraw his g uilty plea if he can show a fair and just rea son for reque sting the withdrawa l.” United States v. W ynn , 663 F.3d 847, 849 (6th Cir. 2011). As the movant, Var g as-Gutier rez had the burden of establishing that his motion to withdraw his plea should be gra nted. Unit ed S t a t es v. Goddard , 638 F.3d 490, 494 (6th Cir. 2011). This Court looks to the foll owing seven factor s in assessing whether a defenda nt established a “ fair a

nd just” rea son under the totality of the c ircumstance s: (1) the amount of time that elapse d betwee n the plea and the motion to withdraw it; (2) the prese nce (or absenc e) of a valid rea son for the failure to move for withdrawa l ear lier in the proce eding s; ( 3) whether the defe ndant has asser ted or maintained his innocenc e; (4) the circ umstances underly in g the entry of the g uilty plea; (5) the defe ndant’s nature and backg round; (6) the deg ree t o whi ch the defe ndant has had prior experienc e with the cr iminal justice sy stem; a nd (7) potential pr ejudice to the g overnme nt if the motion to wit hdrawis gr anted.
W ynn , 663 F.3d at 849-50 (quoting United States v. Bashara , 27 F.3d 1174, 1181 (6th Cir. 1994)), abrogated on other grounds by United States v. Caseslorente , 220 F.3d 727, 734-35 (6th Cir. 2000). The rule allowing g uilty pleas to be withdrawn is desig ned “to allow a hastily enter ed plea made with unsure he art a

nd confuse d mind to be undone, not to allow a defe ndant to make a tactica l de cision

to enter a plea, wa it severa l weeks, a nd then obtain a withdrawa l if he believes tha t he made a bad choice in ple ading g uilty .” Goddard , 638 F.3d at 493-94 (quoting United States v. Alexande r , 948 F.2d 1002, 1004 ( 6th Cir. 1991)).
As Var g as-Gutier

rez observe s, the m ajority o f t h e factors “ca n be handled simult aneously beca use [his] explanations are inext rica bly intertwined.” I n sum, Var g as-Gutier rez arg ues that he
5No. 11-1627

USA v. Se rgio Vargas-Gutierrez

was misled by his attorney and lac k ed s u ff i ci ent knowledg e of the leg al sy stem and the Eng lish lang uag e to understand he was forf eiting hi s ri gh t t o l ater arg ue he was not g uilty by rea son of duress. The rec ord reflec ts that he primarily speaks Spanish, rec eived only six y ear s of education in Mexi co, and has had only one prior experience with the criminal justice sy stem. Howeve r, we see nothing to indicate that he wa s so lacking in sophistication as t o be unable to understand the clea r and thorough statements made by the court during the pl ea proce eding , as reviewed above, which

wer e translated for his benef it. Fur ther, a narc otics detec tive testified that Var g as-Gutier rez “see med

to conver se pretty dece nt” in Eng lish in sever al secr et rec ording s with a cooper ative witness who did

not speak Spanish and who said he had been purcha sing drug s from Var g as-Gutier rez for near ly two
y ear s. The dis t ri ct co urt made a finding during the Motion/S entenc ing Hea ring that Var g asGutierre z’s testimony , which constitutes the only aff irmative evidenc e that he was misled i n to pleading g uilty or committed his crimes under duress, was incre dible. This deter mination was not clea rly err oneous in light of the testimony at the Motion/S entenc ing Hea ring and other evidenc e in the re cord. See U

nited States v. Dixon , 479 F.3d 431, 435-36 (6th Cir. 2007) (noting that finding s of fac t based on a cre dibilit y deter mination are not ty

pically subject to reve rsal on appellate revie w). The dis t ri ct co urt also did not clea rly err in finding that Var g as-Gutier rez “panic ked and decide d that he was g oing to roll out a [ false] story ” after learning he was fac ing fifteen to twenty
y ear s’ imprisonment instea d of the ten f or which he was hoping . Although Var g as-Gutier rez may have maintained hi s innocenc e throug hout the proce eding s—other than, of course , at his plea hear ing—the timing of his motion to wit hdrawhis guilty plea on the sa

me day the court indicated 6No. 11-1627

USA v. Se rgio Vargas-Gutierrez it was prepa

red to deny an acc eptanc e of responsibility reduc tion and apply an obstruction of justice enhanc ement sug g ests a “tact i cal decision” rathe r than an “unsure hear t and confuse d mind.” Goddard , 638 F.3d a t 493-94.
As the district court rec og nized, believing Var g as-Gutier rez’s testimony at the Motion/S entenc ing Hea

ring would also require a finding that he had committed perjury when, under oath at the plea hear ing, he acknow ledg ed the truth o f the fac tual alleg ations ag ainst him. Specific al l y , Var g as-Gutier rez ag ree d that he had both an ag ree ment and an intent to distribute

coca ine with another person, and g ave no indication of involuntariness. “A motion that can succe ed only if the defe ndant committed perjury at the plea proce eding s may be reje cted out of hand unless the defe ndant has a compelling explanation for the contra diction.” United States v. Shah , 453 F.3d 520, 523 (D.C. Cir. 2006) (quoting United States v. Peterson , 414 F.3d 825, 827 (7th Cir. 2005) ).
Her e, the district court found that the explanation itself was perjury

. “L y ing to a court is not a ‘fa ir and just rea son,’ Fe d. R. Crim. P. 11(d)( 2)(B ), for al l o wi ng a plea to be withdrawn.” Id. (citing
Peterson , 414 F.3d at 827); see also United S t a t es v. Soto , 660 F.3d 1264, 1266 (10th Cir. 2011) (“Must a district court allow a defe ndant to withdraw his g uilty plea—e ven when the reque st is based

on a lie? Unsurprising ly , we hold the answe r is no.”). We conclude that the court did not abuse its discretion in deny

ing the motion. See G oddard , 638 F.3d a t 495. 1

Var g as-Gutier

rez’s alleg ations that his first attorney did not proper ly advise him conce rning 1 his plea ag ree ment may be raised separ ately as an ineffe ctiveness of assistance of counsel claim. See W ynn , 663 F.3d a t 850-51. 7No. 11-1627

USA v. Se rgio Vargas-Gutierrez B. Obstruction of

Justice Enhan cem ent
Var g as-Gutier

rez submits that the district court e rre d in g ranting a two-level enhanc ement for obstruction of justice, which applies when “the defe ndant will fu l l y obstructed or impeded, or attempted t o o bstruct or impede, the administration of justice with respe ct to the investiga tion,
prosec ution, or sentenc ing of the instant offe nse of conviction.” USSG § 3C1.1 (2009). Whil e we revie w the district court’s fac tual deter minations conce rning the application of this enhanc ement for clea r err or, we revie w the decision that a defe ndant’s conduct amounted to obstruction of justice under the Guidelines, and the application of that enhanc ement, de novo. United States v. Sweet , 630 F.3d 477, 480 (6th Cir. 2011). “I n revie wing t h e § 3 C1.1 enhanc ement, we evalua te [t he] 2
defe ndant’s testimony and statements in a light most fa vorable to the defe ndant.” United States v. Thomas , 272 F. App’x 479, 487 (6th Cir. 2008) (quoting United States v. Head , 927 F.2d 1361, 1372 (6th Cir. 1991)) (inter

nal quotation marks omitted). Although not discussed by the parties, we observe that the district court sufficie ntly followed the procedure we established for application of US SG § 3C1.1 in United St ates v. Sassanelli , 118 F.3d 495, 501 (6th Cir. 1997). See United States v. May , 568 F.3d 597, 607 (6th Cir. 2009). Under this proc edure , the district c ourt must (1) identify perjurious statements the defe ndant made on the stand, (2) find that the defe nd an t m ade these statements wilfully , and (3) find that these false

We r ecog nize that this Court has pre viously applied a clea r err or standard “whe re the sole 2 issue befor e the district court is a fac t-bound application of the g uideline provisions.” United States v. Jack son-Randolph , 282 F.3d 369, 390 (6th Cir. 20 0 2 ). “W e need not decide betwee n the two standards here beca

use the district court’s decision is proper ly upheld under either.” United States v. Carter , 510 F.3d 593, 597 n.1 ( 6th Cir. 2007). 8No. 11-1627

USA v. Se rgio Vargas-Gutierrez
statements wer e materia l. Id. I n ruling on the obstruction of justice enhanc ement, the court ref err ed back to its ear lier well-supported findi ng s that Varg as-Gutier rez was untruthful during essentially all of his testimony

with respec t to the circumstanc es of his g uilty plea and his pa rticipation in the drug conspirac y . As discussed above, those finding s wer e not clea rly err oneous even when viewed in the light most favor able to Var g as-Gutier rez and despite his continued insistence to this Court in his appellate brief that “his testimony was completely truthful.” W h en ex p laining the decision t o deny the motion to withdraw the g uilty p l ea , “t he district judge identified specific instances of conflicting testimony and pointed to the specific portions of [Varg as-Gutier rez’s] testimony that he deeme d perjurious.” Thomas , 272 F. App’ x at 488. Refer encing Var g as-Gutier rez’s false statements, the district court found “the lies are conscious, intentional, and repe ated.” See id. at 487 (quoting United States v. Dunnigan, 507 U.S. 87, 94 (1993)) (noting obstruction enhanc ement applies when false testimony g iven “with the willful intent to provide false testimony , rathe r than as a result of confusion, mistake, or faulty memory ”). This finding is also not cle arly err oneous. Although p er h aps obvious in context, the district court did not expressly rule that eac h perjure d statement was “mater ial.” Howeve r, we need not rema nd when, as here , “we may answe r 3
such a question of law ourselves.” Id. (citing United States v. Seym our , 38 F.3d 261, 264 (6th Cir. 1994)). Evidence is considere d materia l in this context when, “if believed, would tend to influence

The court came close to a materiality deter mination when it stated t hat t he purpose of t he 3 lies was “to sustain the theory that he was forc ed to pa rticipate in the underly

ing conspirac y and at least sug g est[] that he enter ed that g uilty plea with something less than the ful l fre e will

. . . he indicated to me he had at the time.” 9No. 11-1627

USA v. Se rgio Vargas-Gutierrez

or aff ect the issue under

deter mination.” USSG 3C1.1 cmt. n.6. Var g as-Gutier rez’s testimony at the Mot i o n / S entenc ing Hea ring clea rly meets this standard beca use, if believed, it would have direc tly aff ecte d sever al of the f

actor s the district court used to assess whether to g rant his motion to withdraw his g uilty

plea. See W

ynn , 663 F.3d a t 849.
Var g as-Gutier

rez raises t wo ar gu ments to esca pe the obstruction of justice enhanc ement. First, he sug g ests that imposing this enhanc ement led to a sentenc e that was “g rea ter than nece ssary ” beca use it “amounts to a double punishment for the exact same c onduct” f or which he was de nied the acc eptanc e of responsibility reduc tion under § 3E 1

. 1

. Howeve r, we have rec og nized that the Guidelines ex p re s sly contemplate that “[c]onduct resulting in an enhanc ement under § 3C1.1 (Obstruc ting or I mpeding the Administration of J ustice) ordinarily indicates that the defe ndant has

not a cce pted responsibility ” except in “ extraordinary case s.” United States v. Paul , 551 F.3d 516,
528 (6th Cir. 2009) (quoting USSG § 3E1.1 cmt

. n . 4 ); s ee , e.g. , Soto , 660 F.3d at 1268-69 (upholding imposit ion of obstruction enhanc ement and denial of acc eptanc e reduc tion for false testimony in withdraw- of-plea hear ing)

. I t is notable that the PSR , while deny ing the acc eptanc e of
respons i b i lity deduction, did not rec ommend an obstruction of justice enhanc ement. The court imposed the enhanc ement beca use of Var g as-Gutier

rez’s testimony at t h e Motion/S entenc ing
Hea ring , not his previous statements, noting “ther e is a penalty for ly ing in a sentenc ing proce eding , as the Court has f

ound the def

endant did her e.” Second, Var g as-Gutie r

r e z s u g g e s ts that conduct rela ting to a motion to withdraw a g uilty plea

cannot implicate USSG § 3C1.1 beca use s u c h a mo ti o n d o e s n ot obstruct “investig ation, prosec ution, or sentencing .” We disag ree . “I n the l eg al s ense, a prosec ution terminates on l y when sentence is 10No. 11-1627

USA v. Se rgio Vargas-Gutierrez imposed.” United S t a t es v. Roche , 321 F.3d 607, 610 (6th Cir. 2003) (quoting Bradley v. United
States , 410 U.S. 605, 609 (1973)) ; see Soto , 660 F.3d at 1268-6 9 (p er j u ry during chang e-of

-plea hear ing implicates prosec ution and sentenc ing)

. Acc ording ly , we hold that the district court did not

err in imposing an enhanc ement for obstruction of justice due to testify ing falsely at th e Motion/S entenc ing H ear ing. 4
III. CONCLUSION
For the rea sons above, we AF F IRM the district court’s denial of Var g as-Gutier rez’s motion to withdraw his g uilty

plea a s well as the se ntence imposed.

Although the Application Notes provide that the enhanc ement should not be applied due to 4 a defe ndant’s denial of g uilt, there is an exception when that denial “constitutes perjury .” USSG § 3C1. 1 cm t

. n.2; see also id. cmt. n.4(f) (stating adjustment applies to “providing materia lly false information to a judg e”)

. 11