NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a1300n.06 No. 11-5883 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. SHAUN MI CHAEL

SMI TH, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF KENTUCKY

BEF ORE: SI L ER, SUTTON, and Mc KEAGU E, Circuit J udg es.

PER CURI AM. Shaun Michae l Smith, a fede ral prisoner, appea ls the denial of his motion to withdraw or vaca

te his g uilty plea, following his conviction for conspirac y to defr aud, twent y counts of mail fra

ud, and two counts of w ire fr aud. Smit h was indicted with sever al co-de fenda nts who had conspired to defr aud investors in an oil and g as well drilling prog ram heade d by Smit h’s fathe r. Two of the co-de fenda nts enter ed g uilty pleas and testified ag ainst the rema ining defe ndants at trial. After seven day s of trial and testimony from g overnme nt witnesses, Smit h and one other co-de fenda nt elec ted to enter pleas of g uilty

. The trial continued ag ainst Smit h’s fathe r and uncle, resulting in their convictions. More than ten months afte r enter ing his plea, Smit h filed a motion to withdraw or vacate the plea. The district c ourt held

an evidentiar

y hear ing on the motion and denied it. Smit h was ultimately sentenc ed to thirty monthsNo. 11-5883

United States v. Smith of imprisonment. On appea l, Smit h argues that the district court err ed in denying his motion to withdraw or

vaca te his g uilty

plea. We revie w the denial of a motion to withdraw a g uilty plea for an abuse of discretion. United States v. Ha

yg o o d , 5 4 9 F.3d 1049, 1052 (6th Cir. 2008). The district court discussed the fac tors rele vant to the motion, including the l en gt h of time betwee n the g uilty plea and the motion to withdraw, the exis tence of any rea son for not moving ear lier, whether Smit h had maint ai n ed his innocenc e, the circ umstances surrounding the plea, and Smit h’s familiarity with the criminal justice sy stem. See United States v. Bazzi , 94 F.3d 1025, 1027 (6th Cir. 1996). Smit h waited over ten months be fore moving to w ithdraw his plea, a leng thy delay that counsels ag ainst withdrawa l. He argued that he neede d to obtain funds to hire a new attorney befor e filing his motion, but the district court disag ree d, finding that Smit h could have asked his orig inal counsel to file the motion. Smit h argued that he had maintained his innocenc e, but the dis t rict court reje cted that argument as not consistent with the rec ord of the g uilty plea proce eding

. Smit h argued that he had turned down plea offe rs of thre e and e ight year s, and, there fore , must have been telling the truth when he testified at the m otion hear ing that he had been pro m i s ed b y h i s orig inal counsel that he would g et no prison time if he enter ed a plea. The district court found Smit h’s testimony not c redible, compar ed to the testimony of his orig inal counsel and counsel for his co-de fenda nt who al s o enter ed a plea. Both denied that any promise of avoiding prison time had been made and stated that Smit h was awa re that he could not g et a better deal than the co-de fenda nts who cooper ated with the g overn m en t and testified at trial. The plea offe rs Smit h turned down wer e better than the g uidelines rang e of 135 to 168 months that had been calc ulated at the time he moved to withdraw, but they wer e not better than -2-No. 11-5883

United States v. Smith the sentenc e he actua lly rec eiv ed. Moreove r, he acknow ledg ed during the g uilty plea proce eding that he would have no rig ht to withdraw his ple a if his se ntence wer e longe r than he expected. Finally , the district court noted that, althoug h Smit h h ad no previous experience with the criminal justice sy stem, he was an intelligent, colleg e-e ducate d person who did not appea r to misund er s t an d the g uilty plea proce eding

. We find no abuse of discretion in the district cour t ’s consideration of the rele vant fa ctors or its denial of the motion to withdraw the plea

. Alterna tively , Smit h arg

ues that the district court should have vaca ted the plea beca

use it was not supported by a fac tual basis, see United States v. Mastrapa , 509 F.3d 652, 661 (4th Cir. 2007). He relies on one exchang e during the g uilty plea proce eding , when the district court asked whether Smit h knew that the brochur es he was mailing out wer e untruthful, and he responde d, “I do now.” He argues that, if he did not know the brochur es wer e untruthful at the time they wer e mailed, there is no factua l basis for his plea. H oweve r, the district cour t may base its deter

mination of a fa ctual basis on the entire rec ord. Id. I n this case , the rec ord included substantial evidenc e that Smit h was

awa re that investors wer e being defr auded and that the mails wer e being used to fac ilitate the scheme

. See United States v. Frost , 125 F.3d 346, 354 (6th C i r. 1997). The rec ord included evidenc e that Smit h acte d as the bookkeepe r for the enter prise, rec eiving chec ks fro m i n v es tors, depositing them into ba

nk acc ounts that g ave the appea ranc e the funds would be invested in an oil

or g as well, and then transfe rring the funds to his family ’s acc ounts for their private use. The rec ord also showed that Smith knew that wells were not being drilled wher e they wer e re prese nted to be, and wer e not being develope d so that they could produce oil or g as. Smit h knew that sever al states had issued cea se-a

nd-desist order s ag ainst the enter prise beca use they wer e selling secur ities without -3-No. 11-5883

United States v. Smith disclosing all materia l fac ts. One of the c ooperating c o-def endants testified that Smit h posed as a satisfied investor on an I nterne t forum, making false repr esenta tions that he had ear ned larg e sums fr om his oil and g as well investments. The co-de fenda nt also testified that Smit h had d ev i s ed a scheme to plant drug s on a driller who he thought was cooper ating with the g overnme nt i n v estig ation. I n spite of the one ambig uous response on which Smit h bases his argument for

vacating his plea, the entire rec ord establishes a sufficie nt fac tual basis to support his g uilty plea to the cha rg es. For all of the above rea son s , we af fi rm the district court’s denial of Smit h’s motion to withdraw or

vaca te his g uilty

plea.

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