*The Honorable James G. Carr, United States District Judge for theNorthern District of Ohio, sitting by designation.1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0084P (6th Cir.)File Name: 00a0084p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________UNITEDSTATES OFAMERICA,Plaintiff-Appellee,v.DAVIDCHARLESHUNT,Defendant-Appellant.;>1Nos. 98-1047/1762Appeal from the United States District Courtfor the Eastern District of Michigan at Flint.No. 95-50041—Paul V. Gadola, District Judge.Argued: December 6, 1999Decided and Filed: March 9, 2000Before: COLE and GILMAN, Circuit Judges; CARR,District Judge.*_________________COUNSELARGUED:Kenneth R. Sasse, FEDERAL DEFENDER’SOFFICE, Flint, Michigan, for Appellant. Mark C. Jones,ASSISTANT UNITED STATES ATTORNEY, Flint,2United States v. HuntNos. 98-1047/1762Michigan, for Appellee.ON BRIEF:Kenneth R. Sasse,FEDERAL DEFENDER’S OFFICE, Flint, Michigan, forAppellant. Mark C. Jones, ASSISTANT UNITED STATESATTORNEY, Flint, Michigan, for Appellee._________________OPINION_________________JAMES G. CARR, District Judge. This is an appeal froma criminal sentence imposed on defendant by the UnitedStates District Court for the Eastern District of Michigan.Defendant pled guilty to conspiracy to distribute cocaine,distribution of cocaine and felony possession of a firearm.(J.A. at 26).Before sentencing, defendant moved for anin camerahearing to determine whether, as he claimed, the governmentviolated his plea agreement’s written terms. (J.A. at 36-44).Specifically, defendant alleged that the government breachedhis plea agreement by failing to: 1) release him on bond sothat he could actively assist the government in otherinvestigations, 2) interview him a series of times (i.e., morethan twice), thereby thwarting his ability to cooperate withlaw enforcement officials, and 3) administer a lie detector testto determine if he provided truthful information during twointerviews. In the alternative to a hearing, defendantrequested leave to withdraw his guilty plea. (Id.).The district court refused to hold a hearing, finding that theplain and unambiguous terms of the plea agreement had notbeen breached. (J.A. at 79-82). Further, the district courtwould not allow defendant to withdraw his plea because hehad not satisfied his burden of withdrawal under Rule 32 ofthe Federal Rules of Criminal Procedure. (J.A. at 83-85).In a motion for reconsideration, defendant raised a newbasis for a hearing. He argued that the government made oralpromises to him while negotiating the plea agreement. Thosepromises, he claimed, had not been fulfilled. The districtNos. 98-1047/1762United States v. Hunt11States v. Pluta, 144 F.3d 968, 973 (6th Cir. 1998). “If amotion to a withdraw a plea of guilty ornolo contendereismade before sentence is imposed, the court may permit theplea to be withdrawn if the defendant shows any fair and justreason.” Fed. R. Crim. Pro. 32(e). The defendant has theburden of proving that withdrawal of the plea is justified.United States v. Baez, 87 F.3d 805, 808 (6th Cir. 1996). Indeciding whether a defendant has stated a fair and just reasonto allow withdrawal of a plea, the factors to be considered are:1) the amount of time that elapsed between the plea andthe motion to withdraw it; 2) the presence (or absence) ofa valid reason for the failure to move for withdrawalearlier in the proceedings; 3) whether the defendant hasasserted or maintained his innocence; 4) thecircumstances underlying the entry of the guilty plea; 5)the defendant’s nature and background; 6) the degree towhich the defendant has had prior experience with thecriminal justice system; and 7) potential prejudice to thegovernment if the motion to withdraw is granted.United States v. Bashara, 27 F.3d 1174, 1181 (6th Cir. 1994).The district court applied the preceding factors anddetermined, within its discretion, that withdrawal wasinappropriate. (J.A. at 84-85). The district court did notabuse its discretion given: 1) the length of time of timebetween entry of defendant’s plea and his motion forwithdrawal (almost one year), 2) the absence of any breach ofthe plea agreement, 3) defendant’s confession of guilt, 4) thecareful reading of the plea agreement’s terms to defendant atthe plea hearing, and 5) defendant’s criminal history. (Id.).CONCLUSIONFor the foregoing reasons, the opinion of the district courtis AFFIRMED.10United States v. HuntNos. 98-1047/1762Further, bad faith on the part of the government is not thestandard of review in downward departure cases. Wepreviously have held that a hearing is not needed unless thegovernment’s refusal to recommend a downward departure“was based on an unconstitutional motive.”United States v.Bagnoli, 7 F.3d 90, 92 (6th Cir. 1993) (citingWade v. UnitedStates, 504 U.S. 181 (1992)). No threshold showing ofunconstitutional motive has been made here.Indeed, the district court demonstrated why the governmenthad fully complied with the terms of the plea agreement.(J.A. at 79-82). In its order, the district court noted that theplain language of the plea agreement made clear that thegovernment did not have any obligation to release defendanton bond, interview defendant any set number oftimes, oradminister a lie detector test. (J.A. at 79-82). A review of theplea agreement confirms this. (J.A. at 56-66). Thus, it waspermissible to interview defendant twice for his cooperation,and, when the government concluded substantial assistancewas not forthcoming, decline to recommend a downwarddeparture. (J.A. at 62). Nothing about the government’sconduct raises constitutional concerns.III.Plea ValidityDefendant argues that the district court should have held ahearing to consider whether he entered into his guilty pleavoluntarily and, thus, validly.Defendant, however, never moved the district court to holda hearing to determine if his plea was valid. Rather, he asked,as an alternative to a hearing, that his plea be withdrawnbased on its alleged invalidity. That alternative request wasdenied because defendant failed to satisfy his burden ofwithdrawal under Rule 32 of the Federal Rules of CriminalProcedure. (J.A. at 83-85). Thus, the only questionappropriately presented is whether the district courtmisapplied Rule 32.Denial of a defendant’s motion to withdraw his guilty pleaunder Rule 32 is reviewed for an abuse of discretion.UnitedNos. 98-1047/1762United States v. Hunt3court denied defendant’s motion for reconsideration because,among other things, the plea agreement contained anintegration clause, restricting its terms to those written withinits four corners. (J.A. at 100).Defendant argues here that the district court erred in notallowing a hearing. He claims a hearing was necessary to: 1)determine whether the government breached its oral promises;2) assess whether the government failed to provide him witha good faith opportunity to cooperate; and 3) establishwhether his guilty plea was valid. (Defendant’s Brief at 11-17).For the following reasons, we AFFIRM the judgment of thedistrict court.BACKGROUNDA grand jury in the Eastern District of Michigan returned anindictment against defendant for seven counts of conspiracyto distribute cocaine, distribution of cocaine, use of a firearmduring the commission of a drug offense, possession of afirearm by a felon, and possession of a firearm with anobliterated serial number. (J.A. at 18-24). On May 28, 1996,defendant pled guilty to three of the seven counts andforfeited two vehicles as part of his Rule 11 plea agreement.(J.A. at 26).Defendant’s plea agreement contains three clauses that arerelevant here. First, it contains an integration clauserestricting its terms to those written within its four corners:No Other Terms.This agreement incorporates thecomplete understanding between the parties, and no otherpromises have been made by the government to thedefendant or to the attorney for the defendant.(J.A. at 34). Second, the plea agreement contains acooperation clause, obligating defendant to assist thegovernment in other investigations:4United States v. HuntNos. 98-1047/1762Truthful Information and Assistance.Defendantpromises to provide truthful and complete information tothe United States Attorney’s office and to other lawenforcement agencies, including a full debriefing andtruthful testimony at all proceedings, . . . . Defendantagrees to be available for interviews in preparation of alltestimony. Defendant further agrees to submit, uponrequest, to government- administered polygraphexaminations to verify defendant’s full and truthfultestimony.(J.A. at 30-31). Third, the plea agreement contains a clauserequiring the government to inform the district court ofdefendant’s substantial assistance in other investigations and,if appropriate, recommend a downward departure from thesentencing guidelines:Substantial Assistance Determination.Upon thegovernment’s determination that defendant’s cooperationamounts to substantial assistance in the investigation ofothers, the government will advise the court of thedefendant’s cooperation at sentencing, and, ifappropriate, request the court to depart downward fromthe applicable sentencing range. The governmentreserves the right to make the sole determination as towhether and when defendant has provided substantialassistance.(J.A. at 31).On May 29, 1996, the district court held a plea hearing inaccordance with Rule 11. At the hearing, the district courtreviewed the details of the plea agreement with defendant.(J.A. at 115-119). Defendant was asked whether heunderstood that the plea agreement was a fully integrateddocument:THE COURT:Paragraph nine saysthis is a completeAgreementbetween yourself and the Government, andthere have been no other promises made to you. Do youunderstand that is in this document?Nos. 98-1047/1762United States v. Hunt9reliance on the written plea agreement.Id.But weemphasized that an integration clause “wouldordinarilyprevent any assertion that there were side deals or promises.”Id.(emphasis added).Here, there are no circumstances justifying a departure fromthe ordinary rule set forth inPeavy. Unlike the defendant inPeavy, defendant in this case has filed no affidavit attesting toa side agreement with the government. And the government,though it has filed no supporting affidavits of its own, deniesthat any such oral agreement exists. (Government’s Brief at11) (“[T]here were no agreements whatsoever which were notcontained in the Rule 11 [plea agreement].”). Given thisdenial, the integration clause, and defendant’s failure to filean affidavit, the district court was correct in finding that nohearing was necessary.Defendant attempts to distinguishPeavyon the basis thatit was a post-sentencing challenge to a plea agreementpursuant to 28 U.S.C. § 2255. (Defendant’s Brief at 12-13).But the fact that the challenge here occurred before sentencingis unremarkable. Once the government enters into a Rule 11plea agreement containing an integration clause, the resultordinarily should be final and immune from collateral attack,whether such attack occurs before or after sentencing.II. Bad FaithDefendant claims the government frustrated his ability tocooperate and, thus, qualify for a downward departure fromthe sentencing guidelines. He further alleges that thegovernment acted in bad faith, which he was not given anopportunity to prove at a hearing. (Defendant’s Brief at 14-16).Defendant’s allegation of bad faith is raised for the firsttime on appeal. He never alleged bad faith to the districtcourt. Rather, he simply maintained that the governmentviolated the plea agreement, without making any claim thatthe government was improperly motivated. Defendant’sargument is fatally flawed for this reason alone.8United States v. HuntNos. 98-1047/1762I. Oral PromisesIn his motion for reconsideration, defendant claimed thatthe government made two oral promises to him that had notbeen fulfilled. First, he claimed the government promisedhim a polygraph test, which it never administered. (J.A. at88). Second, he claimed the government promised not toconfiscate two of his vehicles if the polygraph results showedthat he had not used those vehicles in the commission of adrug offense, but then confiscated them without giving him achance to take the polygraph. (Id.). Defendant explained thatthese unfulfilled promises were not included in the writtenplea agreement for his protection (id.), yet were intended to bebinding on the government. Defendant repeats this argumenthere. (Defendant’s Brief at 11-13).An integration clause normally prevents a criminaldefendant, who has entered into a plea agreement, fromasserting that the government made oral promises to him notcontained in the plea agreement itself.Peavy v. United States,31 F.3d 1341, 1345 (6th Cir. 1994). InPeavy, the defendantpled guilty to distribution of cocaine. His Rule 11 pleaagreement contained an integration clause. After sentencing,he claimed to have had an oral arrangement with thegovernment to reduce his sentence if he cooperated in anongoing FBI investigation. He further claimed thegovernment failed to live up to its end of the bargain after heprovided the cooperation requested. Accordingly, defendantsought a hearing at which to contest his guilty plea.Defendant’s attorney, who was with him at the time thegovernment’s alleged promise was made, filed an affidavitwith the district court attesting to the existence of an oralpromise.The government inPeavyconceded that it had entered intoa oral promise with the defendant, and that the promise wasomitted from the plea agreement. But the governmentdisputed the terms of the oral promise.A hearing was necessary inPeavybecause both sidesacknowledged an oral promise and the government placed noNos. 98-1047/1762United States v. Hunt5DEFENDANT:Yes. . . .. . .THE COURT:Has anyone directly or indirectly madeany promises . . . other than the terms of this [p]lea[a]greement to get you to plead guilty to these charges?DEFENDANT:No.(J.A. at 118-119) (emphasis added). The district court alsoconfirmed that defendant understood that the governmentalone, in its discretion, would determine whether he hadcooperated in other investigations and, thus, was eligible fora recommendation of downward departure:THE COURT:All right. Paragraph 3B says thatif theGovernment determines that your cooperation hasamounted to substantial assistance in the investigation ofother people, the Government will tell me about yourcooperation at the time of sentencing, and if theGovernment deems it appropriate, the Government willrequest that I depart downward from the applicablesentencing range for you under the sentencing guidelines.You understand that, sir?DEFENDANT:Yes.THE COURT:It goes on to say thatthe Governmenthas the right to make the sole determination as towhether you have provided that cooperation andsubstantial assistanceand as to whether you haveprovided it. You understand that, sir?DEFENDANT:Yes.(J.A. at 116-17) (emphasis added). Following thisquestioning, the district court found that the plea agreementsatisfied Rule 11. (J.A. at 118).6United States v. HuntNos. 98-1047/1762Defendant’s sentencing was set for September 12, 1996,and then moved to January 9, 1997. (J.A. at 121). Betweenthe plea hearing and January 9, 1997, law enforcementofficials interviewed defendant twice. (J.A. at 38). Duringthose interviews, the government claims defendant wasuncooperative, and that he did not proffer any informationregarding his knowledge of illegal activities. (Government’sBrief at 6). Defendant claims he “fully cooperated” duringthe interviews, “providing sensitive information . . . thatclearly would aide in seeking independent indictments.” (J.A.at 38).Because the government found the interviews to beunproductive, it adjourned the January 9th sentencing toprovide defendant with another chance to cooperate. (J.A. at81). Confirming by letter the adjournment with defendant’slawyer, the government requested a written proffer fromdefendant:As you know, I agreed, with some reluctance, to anadjournment . . . on January 9, 1997. I am writing toadvise you of my position as to the issue of cooperation.I have previously written to you about my concern withthe fact that Mr. Hunt has been reluctant to cooperate.Indeed, my investigating officers have expressed to metheir views that there is no point in a further proffer fromhim.As such, at this point, I am respectfully asking that youmeet with Mr. Hunt and prepare aspecificanddetailedexplanation of his knowledge of illegal activities and hisproposed cooperation. I will submit it to theinvestigating officers. If we feel that it justifies a reexamination of the cooperation issue, we will advise you.(J.A. at 67-68) (emphasis original).Defendant never accepted the government’s invitation tosubmit a written proffer. (Government’s Brief at 7).Nos. 98-1047/1762United States v. Hunt7In December 1997, nearly a year after the adjournment, thedistrict court reconvened the parties for sentencing.Defendant’s lawyer asked for another delay of sentencing andan extension of time to cooperate. (J.A. at 120-21). But thedistrict court denied this request:THE COURT:. . . I’m aware that we were back then onJanuary 9th, 1997 for sentencing and then there was – Ibelieve the matter was adjourned so that your client[defendant] could have an opportunity to provide somecooperation to the government. And so now almost ayear has passes since then . . . . Here we are again, andyou want more time? I’m not disposed to give it. . . .. . .[W]ithin one year after sentencing if Mr. Hunt canfurnish some substantial assistance during that period,the government, within one year, can come back andmake a motion to reduce the sentence. We’re all awareof that, but I don’t see any reason why at this point . . . Ishould again adjourn this sentencing so that Mr. Huntcan cooperate with the government.(J.A. at 121-22).The district court sentenced defendant to 136 months inprison (J.A. at 102-03), and this appeal followed.DISCUSSIONDefendant asserts that the district court erred in notallowing a hearing. He claims a hearing was necessary forthree reasons: first, to determine whether the governmentbreached its oral promises; second, to assess whether thegovernment failed to provide him with a good faithopportunity to cooperate; and third, to establish whether hisguilty plea was valid. (Defendant’s Brief at 11-17). None ofthese contentions has merit.