The Honor able Gor don J . Quist, United States Senior District J udg e for the Western District * of Michig an, sitting by

desig nation. NO T R EC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION F ile Nam e: 10a0785n.06 No. 09-1728 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT

UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. DO NAL D NO RT ON YO RK, Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ON AP P EA L F RO M THE UNITED STAT ES DIS TRICT COURT F OR

TH E E ASTERN DISTRICT OF MICHIG AN

O P I N I O N

BEFORE: BOGG S and McK EAGU E, Circuit Judges; and QUIST, Senior DistrictJudge. * McK eague, Circ uit Jud ge. Do na ld No rt on Yo rk ple d g uil ty to on e c ount o f c on sp ir a c y to distribute and possess with intent to distribute fifty or more g rams of me thamphetamine, in violation of 21 U.S.C. §§ 841(a)( 1) and 846. After his plea wa s acc epted but prior to be ing se ntence d, York filed a pr o se motion to withdraw his g uilty plea a nd a motion t o h av e his attorney withdraw a s counsel of r ecor d. The district cour t gr anted the motion to have Y ork’s c ounsel withdraw but de nied the motion to withdraw the plea. On appea l, Y ork ar g ues that the district cour t abused its discretion when it us ed “clear ly err oneous” facts and failed to g ive proper weight to certain fa ctors whe n ruling

on Y o r k ’ s mo ti o nto w it

h dr aw h is p le a . B e c a

u s e th e d is tr ic t c o u rt e n g a g e d in a c o mp r e h e n s iveNo. 09-1728

Un ite d S tat es v . York

- 2 - balanc ing of

the re levant fa ctors, we find that there was no a b use of discr etion in denying Y ork’s motion. According ly , we AFF I RM the di strict court’s de nial of York’ s motion t o withdraw his plea

. I. BACKG ROUND Yo rk wa s a memb e r of the F lin t cha pte r of the F lying Whe e ls Mot or c y c le Clu b, a mot or c y c le g angthat was be ing inve stigated by the Fe dera l Bure au of I nvestig ation and st ate law enfor ceme nt for tra ffickingin methamphetamine. Dur ing the investigation, a confide ntial inform a nt r evea led that York wa s involved in the s ale of methamphetamine and t he murder of another g angmember w ho h a d b e e n c o o p e r a ti n g w it h la w e n f o r c e me n t. T h e in f

o r ma n t e xp la in e d th a t Y o r

k and anothe r individual had been r ecr uited to kill t his ga

ng member to pre vent him from re vealingmore information about the drug-tr aff icking operation. The informant also provided information on how the murder

took place a

nd made se vera l controlled purc hases of methamphetamine f

rom York. On Au g us t 11 , 2 00 4, Yo rk

wa s c ha rg e d in an in dic tme nt w ithon e cou nt of con sp ir a c y to distribute and to possess with intent to distribute 500 gr ams or more of methamphe tamine and one

c ount o f d istri bu tio n o f fi ft y g ra ms or le ss of me tha

mph e tamin e . A y e ar- and -a -h a lf la te r, in t he sixth and fina l supersedingindictment, York wa s char g ed with the orig inal counts, as we ll as an additional count of distribution of fifty g rams or le ss of methamphetamine, two counts of possession of a firea rm by an unlawf

ul user of a

controlled substanc e, sale o r d i s p osition of a firea rm to a fe lon, possession of a fir ear

m with an obliterated se rial number, c onspiracy to mu rd er an d m u rder of an ind ivi du a l w hil e e ng a g ingin a c on sp ir a c y

to p os se ss w ithint e nt t o d ist ri bu te me tha

mph e tamin e , u se

o f a fi re ar m d

u ri n g a d ru g t ra ff

i ck i n g cr i m e, an d

wi t n es s t am p er i n g.No. 09-1728

Un ite d S tat es v . York

- 3 - On Oct o b e r

3 , 2 0 0 7 , Y o r

k w a s s c h e d

u le d to a p p e ar f o r tr ia l i nth e d is tr ic t c o u rt. I nstead, Yo rk c ha ng e d h is p le a

to guil ty to t he le sse r i nc lud e d o ff

e ns e of on e c ount o f c on sp ir a c y to d istri bu te fi ft y g ra ms o r mor e of me tha

mph e tamin e , and the Go ve rnme nt a g re e d to dr op a ll r e ma ini ngc ha rg e s. The plea ag ree ment stipulated that York was acc ountable for betwee n five a

nd fiftee n kilogr ams of methamphetamine, r esulting in a n offe nse leve l of thirty -six und er U.S. Sentencing Guidelines Manual § 2D1.1( c)( 2) (“U .S.S.G.”); that a two-leve l inc rea se was appropr iate beca use York kne w that the methampheta

mine was unlaw fully

imported; and that w h i l e the plea ag ree ment

re c omm e nd e d a

tw o- le ve l r e du c tio n f

or a c c e pta nc e of re sp on sib ili ty , th e re c omm e nd a tio n c ou ld chang e if the G overnme nt learne d of information inconsistent w ith the a djustment after the plea wa s enter ed but prior to sente ncing

. On t he basis of those stipulations, the plea ag ree ment deter mined th a t Y o r k ’ s G u i d e l i n e s r an g e o f i mp r i s o n m e n t w o u l d b e 1 8 8

– 2 3 5 m o n t h s , a s e xp l a i n e d in workshee ts acc ompanying the plea a g ree ment. Howeve r, the a g ree ment also stated that both par ties ag ree d to an adjusted rang e if the court found t hat York’s criminal hi story was higher than ca lculated or that York’ s offe nse leve l was hig her due to York making false statements, withholding inf or ma tio n, de mon str a tin g a

la c k of acc e pta

nc e of re sp on sib ili ty , o r o bs tr

uc tin g jus tic e pr ior

to sentenc ing. At the plea h ea ri n g, conducte d pursuant to Rule 11 of the F eder al Rules of Criminal Pr oc e dure , Y or

k w a s swo rn be fo re the c ourt and a c kn ow le dg e d tha t he w a s o bli g a te d to te ll the tr uth and could be prosec uted for pe rjury if he failed to do so. When asked by the court whether he “e ver had any emotional problems or menta l health issues that could have an eff ect on [hi s] abili ty

to think and use g ood judgme nt” at his plea he aring , York responded that he had not. David Nic kola, York’ sNo. 09-1728

Un ite d S tat es v . York

- 4 - trial counsel, a lso stated that York wa s “ca pable of enter ing a

knowing plea.” After

the Gover

nment

re c ite d th e te rm s o f t

he ple a a g re e me nt i n o pe n c ourt , Y or k in fo rm e d th e c ourt that he ha d he a rd a ll of the ter ms and that it was consistent with his understanding of the a g ree ment. He a lso confirmed that he ha d no t be e n pr omi se d any thi ng , a pa rt fr om t he pr ov isi on s o f t

he a g re e me nt, to c on vin c e him to enter his plea . York a d m i t t ed t hat he wa s enteringhis plea bec ause he was re sponsible for the conduct of

the cha rg ed off ense, a nd he expressly

stated t hat he ill eg ally

used methamphe tamine and also sold at least fifty

g rams to his f

riends to suppor

t his drug habit. After concluding that York wa s competent to ente r his plea, that he had done so “ fre ely and voluntarily ” in a “ knowing and intelligent wa

y ,” and that a factual basis exis ted for the pl ea, the court acce pted t he plea ag ree ment and orde red that a date be set for the sentenc ing he aring

. Prior to the sentenc ing hear ing, a PSR was completed that established a Guidelines r ang e of 188–235 months, c orre sponding with the stipulations in the plea ag ree ment, and noted the five- y ear

s t at u t o ry m an d at o ry

m i n i m u m . Yo rk ’s co u n s el fi l eda s en t en ci n g m em o ra n d u m re qu es t i n g a senten c e b e lo w th e f

iv e - y e ar ma n d a to r y mi n im u m, p u r s u an t t o th e “ s a f

e ty v a lv e ” p r o v is io n in

18 U.S.C. § 3553(f) and U .S.S.G. § 5C 1.2, and plac ement in a r esidential substance abuse tre at ment prog ram. How ever , four da y s later, on January

15, 2008 (and more than three months after a cce pting the ple a a g re e me nt) , Y or

k f ile d a pr o se mot ion to wit hd ra w h is guil ty

ple a and a mot ion to h a ve his attorney withdraw. In both motions, York arg ued that his counsel wa s ineffe ctive, that his plea w as not knowing a

nd voluntary beca

use counsel told York that he would ser ve only five y ear s in prison,

and that Y or k b a se d h is ac c e pta

nc e of the ple a on that bel ie f. Ni c ko la c on se nte d to his ow n r e mov a l,No. 09-1728

Un ite d S tat es v . York

- 5 - but denied all alleg ations of ineff ective a ssistance. The dist rict court gr anted the motion to withdraw Nickola a nd set a he aringon York’s motion to withdraw his g uilty plea. The c ourt hea

rd two day s of t es t i m o n y from York, York’s wif e, and N ickola on Yor

k’s mot ion to w ith dr aw h is guil ty

ple a . Y or

k te sti fi e d th a t on

the da y he wa s sc he du le d to g o to tr ia l, Nickola came to him in the holding cell and informed Yor k that he had g otten a “r eal g ood offe r.” Nickola infor

med York that beca

use of his ag e, his l ac k o f a cr i minal rec ord, and his wife ’s dis a bil ity , th e jud g e a g re e d to g ive Yo rk a fi ve -y e ar se nte nc e if Yo rk “ wo uld sa y wh a t he wa

nte d me to say in this pl ea.” After

informing York of the plea, Nic kola left to speak with York’s wife about the dea l. York’s wife testified that she spoke w ith Nickola at the courthouse, who i nformed her that York would re ceive a sente nce of five y ear s. When Nickola re turned to the holding cell, he g ave York four pag es of the a g ree ment, excluding the workshee ts calc ulating his Guidelines rang e, and told him t hat he ha d to sign it immediately if he wanted the offe r. York sig ned the a g ree ment, and testified that he did so, despite still professing his innoc ence , beca use he wanted to be able to take

car e of h is wife. Althoug h he ac knowledg ed that the district judg e re ad into the re cord the

e sta bli sh e d G uid e lin e s r ang e of 18 8– 23 5 mo nth s at his ple a he ari ng , Y or k a lso state d th a t be c a

us e the judg e mentioned the a

pplicable statutory mandatory minimum of five y ear s, he believe d that was the sentenc e he w ould ge t pursuant to the ag ree ment broug ht to him by Nickola. Acc ording to York, a fter the PSRwas dra fted, Nic kola went throug h the PSRwith York, who questioned why the report was needed if there was an exis ting ag ree ment providing for a five-y ear sentenc e. Nickola

alleg edly told York that the judg e did not say York would g et five y ear s, but that Ni c ko la wo uld argue fo r a

se nte nc e of

fi ve y e ars and

if it w a s n ot g ra

nte d, Ni c kola would “ pu llNo. 09-1728

Un ite d S tat es v . York

- 6 - [York’s] ple a

u n d e r th e Ru le 1 1 ” an d

th e y w o u ld g o to tr ia l. So me ti me a f te r th is me e ti n g , Y o rk made r epeated ca lls to Nickola beca use he believed there was “something fishy ” about his plea afte r speakingwith individuals i n his cell block who ha d informed Yor k that their plea

ag ree ments were longe r than four pag es. When Y ork finally spoke with N ickola, he informe d Nickola that he wanted to w ith dr aw h is p le a . N ic ko la tol d Y or k th a t he c ou ld no t wi thd

ra w the ple a , a

nd sa id t hat he wo uld file an a ppeal only

if the court sentenc ed York to mor e than twenty y ear s. York then filed the pro

se mot ion to w ith dr aw the ple a , te sti fy ing that he wa ite d a s lon g a s he did to f ile the mot ion , d e sp ite his init ial suspicions a

bout the ag ree ment, beca

use he was “ig norant” and had to f ile it hims elf. Yor

k

a lso tol d th e c ourt that he su ff e rs fr om p os t- tr a

uma tic str e ss d iso rd e r ( “ PTSD ” ), wh ic h c a us e s h im to make bad de cisions and impacts his memory

. On c ro ss- e xami natio n, the Go ve rnme nt a sk e d Y or k w he the r h e te sti fi e d tr

uth fu ll y a t hi s Ru le 11 hear ing, a

nd York stated that he did not. York also stated that he was not paying attention when the cour t told him that the offe nse to which he was plea ding guilty car ried a forty -y ear

maxi mum sentenc e, and that he “blocke d ever y thing out except hea

ring the five y ear s” that he thought he was g oing to rece ive. When asked why he did not raise a

ny questions in response to the Gove rnment’s

rec itation of the terms of the ag ree ment, York explained that N ickola told him that he had to re spond the way the judg e wa

nted hi m to, so York tried to “g o along with whateve r [the district judge] said.” Nickola a lso testified at the he ar i n g , contra dicting Y ork’s re collection of e vents reg arding the plea a g ree ment and his subsequent c ommunications wi th York. Nickola rec ounted that the Go ve rnme nt h a d o ri g ina lly of fe re d Y or k a ple a wi th a c a p o f 3 00 mon ths, whi ch requ ir e d h im t o plead guilty

to murder in the c ourse of drug traff icking , but York re fused the of fer . Upon re ceivingNo. 09-1728

Un ite d S tat es v . York

- 7 - the new of

fer from the Gove rnment, Nickola expl ai n ed to York that the propose d ag ree ment

c on te mpl a te d a

se nte nc ingra

ng e of 18 8– 23 5 mo nth s o f i mpr iso nme nt, bu t th at it dr op pe d a ll

we a po ns and ho mic ide c ha

rg e s, wh ic h Y or

k b e lie ve d w ou ld h a ve pr e ve nte d r e so lut ion of the c a se ha d th e y re ma ine d in

the a g re e me nt. Ni c ko la

inf or me d Y or k th a t he be lie ve d th is w as “ the be st deal” he could g et, and York agr eed to a cce pt the plea. Af ter indicating Yor

k’s ac cepta

nce to the Gover nment, Nickola spoke wi t h Yo rkab o u tt h e f o rt h co m i n g s en t en ci n g, i n cl u d i n g t h e d i s cr et i o n ary nature of the Sentencing Guidelines, the ability to seek a sentenc e below the Guidelines ra ng e, and the fa ctors that Nickola

believed w ould support a re quest for a below-G uidelines sentenc e. Acc ording to Nickola, once the Gover nment draf

ted the written plea ag ree ment, he broug ht the entire ag ree ment, including the Guidelines ca l cu l at i o n s workshee ts, to York for his re view. Nickola went over the ag ree ment pag e by pag e for approximately thirty minutes to make sure Y ork understood all of the provisions contained ther ein, and t h at by signingthe plea a g ree ment he wa s obligating himself to adhe re to that a g ree ment. Nickola a lso ex plained to York that he would have to disclose the t ruth of hi s involvement in his own words; that a PSRwould need to be draf ted and that York c ould file objections to it; and that a sente ncing memorandum would be filed by Nickola, highlig hting the thing s that York and N ickola wa nted t o prese nt to the judge for c onsideration during sentenc ing. A ccor ding to Nic kola, whil e discussing the plea a g ree ment with him, York never exh i b i ted any

problems intera cting with Nickola, wa s not disoriented, and did not appe ar to be confuse d or t o misunderstand any of t he discussion. Nickola te stified that he spoke w ith York’s wife that day , informed he r that the Gove rnment had of fer ed Yor k a plea deal, a nd explained the g ener al Guidelines ra

ng e and his hope that he could obtain a below-G uidelines sentenc e for York.No. 09-1728

Un ite d S tat es v . York

- 8 - Approxim ately

a we ek af

ter the ple a hea

ring , Nickola met with York fo r t h e pre sentenc einv e sti g a tio n in te rv ie w. Yo rk ra ise d n o c on c e rn s re g ard ing the ple a a g re e me nt, e ith e r to Yo rk or to the probation officer

conductingthe interview . Once the P S Rwas c ompleted in Dec ember 2007, Ni c ko la me t w ithYo rk

to r e vie w the re po rt . Y or k ind ic a te d th a t he wa s f

a mil iar w iththe pr oc e ss, having discussed pre sentenc e re ports with some of his co-de fenda nts who had pled and alr eady been

se nte nc e d, and

he a sk e d N ic ko la

to p ut i n s pe c if

ic ob je cti on s to his PSR th a t he be lie ve d w ou ld result in better treatment w hile incar cer ated. Nickola also revie wed the first draf t of the sentenc ing

me mor and

um w ithYo rk

a nd le ft a c op y fo r h im to re vie w fo r ac c ur a c y . Yo rk se nt a le tte r t o N ic ko la noting pr oposed cha

ng es to the memora

ndum, and Nickola me t agai n wi t h York in early J anuar y 2008 to prese nt York with a thi rd draft incorporating those chang es. Ac cordingto Nickola, this was the fi rs t ti me that Y or

k e xpre sse d a

de sir e to w ith dr aw h is guil ty ple a , doin g so on ly

a ft e r N ic ko la informed Yor

k that the original prosecutor on the case had been replac ed. York tol d Nickola that he be lie ve d th e y

c ou ld b e a t th e ne w pr os e c uto r at tr ia l, b ut N ic ko la

inf or me d Y or k th a t a c ha ng e in pr os e c uto r wa s no t a ba sis on wh ic h Yo rk c ou ld wi thd ra w his ple a , and state d that he wo uld no t f ile the mot ion

to w ith dr aw. Whe n Nic ko la vis ite d Y or

k a g a in s ho rt ly

a ft e r t ha t me e tin g to p re se nt h im wi th a fi na lize d v e rs ion

of the se nte nc ing me mor and um, Yo rk a g a in ra ise d the iss ue of wi thd ra wa l,

a lth ou g h Ni c ko la ta lke d on ly a bo ut the up c omi ng se nte nc ing he ari ng . Ni c ko la te sti fi e d th a t, u nti l he wa s contac ted re g ardingYork’s pr o se filing of the motion to withdraw the plea, he and Yor k had not discussed nor had he otherwise be en made awa re of any of the a lleg ations raised by York in that motion.No. 09-1728

Un ite d S tat es v . York

- 9 - After hear ing the testimony , the district court e ng ag ed in an a ssessment and bala ncing of the fac tors articulated by

this court in United States v. Dix on , 479 F.3d 431 ( 6th Cir. 2007) , to determine whether to gr ant York’s motion to withdraw. The court noted tha t York’s “ nature and bac kg round” weig hed in his favor , as did “the de g ree to which he ha s had p ri o r ex p erience w ith the criminal justice sy stem.” Specific ally , the cour t stated that York had “ne ver be en in a he aringwher e he w as te nd e ri nga

g uil ty ple a to the c ourt ,” and that he ha d b e e n a

“ ha rd wo rk ingman thro ug ho ut t he c ours e of most of his life with litt le contac t or no contac t with the criminal justice sy stem.” Howeve r, the c ourt also noted the c ontext in which the ca se ar ose, spec ifically that the Depa rtment of Just ice wa s possibly seeking the death penalty for Yor k and that other

defe ndants had pled g uilty and re ceive d sentenc es excee ding Y ork’s e stablished Guidelines ra ng e. As a result, York

“ a t le a st und e rs too d th e c on te xt an d th e g ra vit y of the of fe ns e .” Th e c ourt

de te rm ine d th a t th e se

a dd iti on a l f

a c t o r s w e i g h e d

“ m u c h s t r o n g e r

a g a i n s tt h e g r an t i n g o f

t h e m o t i o n . ” T h e c o u rta lso explained that there w as nothing in the Rule 11 ag ree ment “that would have in any way misguided the def endant,” nor was any

thing said during the hearing or by York himself that sug g ested he had a misunderstandingof the terms of t he ag ree ment. The c ourt observe d that the Guidelines ra ng e wa s less than but not incon s i s t en t with the rang es established f or York’ s co-de fenda

nts, and that there was “ no pressure ” to ag ree to the plea since the jury had not bee n empane led. Wit h reg ard to the f

iling of Y ork’s mot ion, the court explained that there w as a “ g ood deal of time” be tween O ctober 9, when Yor

k alleg ed he w as first made awa re that his sentence w ould not be g overne d by

the statutory

minimum , and January

15, when Yor

k filed h i s motion t o withdraw. The c ourt noted that throug hout this t ime, there wer e multipl e documents ref ere ncing the GuidelinesNo. 09-1728

Un ite d S tat es v . York

- 10 - ra n ge, an d

Yo rk ’s as s er t i o n t h at h e wa s “s h o ck ed ” t o l ea rn h i s ca s e wo u l d b e go v ern ed b y t h at ra n ge was “simply not cre dible.” Further, w hile York ha d consistently denied involvement in the murde r, he had a dmitted his participation in the distribution of methamphetamine and in aiding a nd abetting others in doing so. Finally , the cour t stated that g ranting the motion would result i n prejudice to the g ov e rnme nt b e c a

us e the e ve nts un de rl y ingthe c a se ha d b e e n o ng oin g sin c e 19 95 , s ome e vid e nc e in the ca se wa s curr ently

being disposed of, and some of th e wi tnesses for

both the g overnme nt and Yo rk ha d b e e n d isp e rs e d. Ac c or din g ly , th e c ourt de te rm ine d th a t th e re we re “ no fa ir jus tif ic a tio ns ” for Yor k’s withdrawof his plea, a nd it denied the motion. At the s entenc ing hear ing, the court determined that as a result of his testimony at the hea ring on the motion to withdraw, York was no longe r entit led t o a two-le vel re duction for a cce ptance of

r e s p o n s i b i l i t y , m a k i n g h i s t o t a l o f f e n s e l e v e l t h i rty - e i g h t
. W i t h a c r i m i n a l h i s t o r

y c a t e g o r y o f I, York’s G uidel in e s r a

n g e o f im p r is o nment incre ased to 235–293 months. The district cour t sentence d York to 245 months in prison, and York timely appea led. II. AN AL YSI S On a pp e a l, Y or

k c ha lle ng e s the dis tr ic t c ourt ’s de nia l of his mot ion

to w ith dr aw h is guil ty plea. Where a def

endant ha s voluntarily

enter ed a guilty

plea but see ks to have it withdrawn be fore his se nte nc e is i mpo se d, F e de ra l Rule of Cr imi na l Pr oc e dure 11 (d )( 2) (B ) p e rm its wi thd ra wa l on ly wh e re the de fe nd ant “ c an s ho w a fa ir and jus t re a so n for re qu e sti ng the wi thd ra wa l.” F e d. R. C ri m. P. 1 1( d) (2 )( B ); se e als o Un ite d Sta te s v . P lut a , 144 F.3d 968, 973 (6th Cir. 1998) (explaining that the def endant be ars the burden of proving the exist ence of a “ fair a nd just reason” for withdra wal). “We re view the dist rict court’s denial of a mot ion to withdraw a g uilty plea f or abuse of discre tion.”No. 09-1728

Un ite d S tat es v . York

- 11 - Dixon , 479 F.3d at 436. “A district cour t abuses its discretion whe re it re lies 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.” United States v. Hay

good , 549 F.3d 1049, 1052 ( 6th Cir. 2008) (interna l quotation marks omitted). This circuit has e stablished that when de ciding on a motion to withdraw a guilty plea, district

c ourt s sh ou ld c on sid e r t

he fo llo wi ngfa c tor s: (1 ) t he a mou nt o f t ime tha

t e la ps e d be tw e e n th e ple a

and the mot ion

to w ith dr aw i t; (2) the pr esenc e (or

absenc e) of

a valid re ason for

the fa ilure to move for

withdrawa l e arl ie r i n th e pr oc e e din g s; ( 3) wh e the r t he de fe nd ant h a s a sse rt e d o r ma int a ine d h is innocenc e; (4) the circ umstances unde rlying the entry of the gu ilty

plea; (5) the defe ndant' s nature a

nd backg round; (6) the deg ree to which the d ef en d ant 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. Id. (q u o t i n g United States v. Bashara, 27 F.3d 1174, 1181 ( 6th Cir. 1994), s u p e r s e d e d o n other grounds as recognized in United States v. Caseslorente , 22 0 F .3 d 7 27 , 7 34 (6 th Cir

. 20 00 ))

. Th e lis t is “g ener al and none x clusive,” a nd no one fa ctor is deter

minative. Id. I nstead, “the d i s t ri ct court must review a ll the circumstanc es surrounding the original entrance of t he plea as well as the motion to withdraw.” Un ite d S

tat es v . Tr ipl e tt , 828 F.2 d 11 95 , 1 19 7 ( 6th Cir . 1 98 7) . In w e ig hin g the se fac tors, the cour

t should be mindful “that the aim of the rule is to allow a hastily enter ed plea

made wi t h unsure he art a

nd confuse d mind to be undone, not to allow a def endant ‘ to make a ta ctical decision to enter

a plea , wait s ever al wee ks, and then obtain a withdrawa l if he believe s that he made a bad c hoice in plea ding guilty .’” United States v. Alex ander , 948 F.2d 1002, 1004 (6th Cir. 1991) (q u o t i n g Un ite d S

tat es v . Ca rr, 740 F.2d 339, 345 ( 5th Cir. 1984)).No. 09-1728

Un ite d S tat es v . York

- 12 - Her e, Yor k argues that althoug h the cour t “cited to the pr oper f

actor s” in ruling on the motion to w ith dr aw h is guil ty

ple a , th e c ourt “ a

bu se d its disc re tio n whe n it us e d c le arl y

e rr on e ou s f

a c ts i n f i n d i n g t h a t Y o r

k ’ s m o t i o ns h o u l d

b e d e n i e d ” an d

f a i l e d t o c o n s i d e r

t h e e n t i r e r e c o r d

. S p e c i f

i c a l l y, York a rg ues that the c ourt should have g iven “pr oper we i g ht” to York’s “ complete lac k of experience in the criminal justice fie ld,” alleg es that the c ourt failed to c onsider his PTSD, and

c ha lle ng e s th e c ourt ’s c re dib ili ty de termi nat io ns . Y or

k s ta te s th a t he c on sis te ntl y ma int a ine d h is innocenc e fo r four

y ear s and, consider ing the above- listed factor s, the district court should have g rante d his moti on to withdraw his g uilty plea. Despite Yor

k’s many challeng es t o the district court’s a naly sis, it cannot be said that the c ourt

a bu se d its disc re tio n in deny ingYo rk ’s mot ion to w ith dr aw h is guil ty

ple a . F ir st, the a mou

nt o f t ime that elapse d betwee n when Yor k enter ed his g uilty plea and when he filed t he mot ion to withdraw

was excessive. York enter ed his ple a on October 3, 2007, and was interviewe d by a probation officer for c ompletion of the PSRapproximately a we ek later . York testified that it wa s at this interview that he first re alized that he would not be g uara nteed the f

ive-y ear mandatory -minimum sentence. Howeve r, as the district c ourt noted whe n ruling on York’s motion, York waited until J anuar y 15, 2008, more than thr ee m o n t h s l ater , to file his motion t o withdraw his g uilty plea. Yor

k does not dispute this fact on appe al, ar g uing only that he tried to call Nickola many times in the month after discoveringthis fact so that Nickola could file the motion to withdraw, but that his calls were not

acc epted. Eve n acc epting York’s c ontention that he im mediately tried to contac t Nickola to file the motion and t h at Nickola denied his reque st in early November , York still fails to ex plain why heNo. 09-1728

Un ite d S tat es v . York

- 13 - waited a nother two months befor e filing his pro se motion, which is a lmost exactly the amount of time that this court has alre ady deter mined is an “e x tensive dela y .” United St ates v. Bae

z , 87 F.3d 8 0 5 , 8 0 8 ( 6 t h C i r . 1 9 9 6 ) ( “ T h e s t r o n g e s t f a c t o r s s u p p o rt i n g t h e d i s t r i c tc o u rt ' s r u l i n g ar e t h e s i x t yseven da y delay betwee n the motion and the plea, a nd Ba ez's f

ailure to justify

this ex tensive dela

y .”); see also United States v . Durham , 178 F. 3 d 7 9 6 , 798–99 (6th Cir. 1999) (noting that the “[t] he str on g e st f

a c tor su pp or tin g t he di stric t c ourt ' s d e nia l of Du rh a m' s mo tio n is the le ng th o f t ime betwee n Durham's ple a an d t h e f i l i n g o f h i s m o t i o n t o w i t h dr aw , ” w h i c h w a s a p p r o x i m a t e l y s e v e n t yse ve n d ay s) ; Un ite d S

tat es v . G old

be rg , 862 F.2d 101, 104 ( 6th Cir. 1988) (citing a “le ng thy 55-day de lay ” in u

ph old ingthe de nia l of

de fe nd ant’ s mo tio n to wi thd ra w) ; Un i t ed Stat es v. Spe ncer , 836 F.2d 236, 239 ( 6th Cir. 1987) (af firming the cour

t’s denial of defe ndant’s motion, which was f iled five we eks af

ter e ntry of his g uilty

plea) . Moreove r, the district court found that Yor k’s testimony

re g ard ingwh e n h e be c a me awa re that th e Gu ide lin e s r ang e rathe r t he statut or

y min imum w ou ld apply to his sentence was not cre dible, a dete rmination that is not clearly err oneous in light of the testimony at the hea

ring

. See D ixon , 479 F.3d a t 4 3 5

– 3 6 (noting that finding s of fa ct base d on a

cre dibilit y

deter mination are not ty

pically subject to reve rsal on appe llate re view). Ne xt, a lth ou g h Y or

k c or re c tly no te s that he ha s c on sis te ntl y ma int a ine d h is i nn oc e nc e wi th

re g ard to t he mur de r c ha

rg e , h e a dmi tte d at the ple a he ari ngtha t he wa s g uil ty

of the c ha rg e d o ff e ns e of conspira cy to distribute methamphetamine, and he does now not asser t that he is innocent of that char g e. See B aez , 87 F.3d at 809 (noting that defenda nt admitted his guilt at the plea hear ing a nd did not reasse rt his innocence until the da y of sentenc ing) . Moreove r, the c ourt found the f ollowing circ umstances unde rly ing e ntry of the guilty

plea: a ple a ag ree ment had been offe red to Y ork bef oreNo. 09-1728

Un ite d S tat es v . York

- 14 - a jury had bee n empane led; the plea ag ree ment dropped the most ser ious charg es involving murde r and included only

the lesser -included of

fens e o f conspira cy

to distribute fifty

or more g rams of

m et h am p h et am i n e; Ni ck o l a e x p l ai n edt o Yo rkt h at i f h e a cc ep t edt h e p l ea , h e w o u l d b e f ac i n g a Guidelines ra

ng e of 188–235 months in prison, but that York could as kthe cour t for a lowe r sentenc e; York’s co-de fenda nts ha d been se ntence d on simil ar or related cha

rg es and ha d rec eived sentenc es g reater than the high end of York’s Guidelines rang e; York never e x presse d any confusion over the terms of his ple a ag ree ment and there was no indication in his intera ctions with Nickola that he wa s af fe ct ed b y his PTS D when de ciding whether to acc ept the plea ; no statements made by Nickola be fore the plea he aring , and no stateme nts made by Nickola, the c ourt, or the Gove rnment at the plea hear ing sug g ested that Yor k would be g uara

nteed a sentenc e of f

ive y ear s; and there was no pressure to acc ept the plea , either f rom Nickola or

the cour t. As th e d i strict court noted, a nd York c orre ctly

asser ts in his brief, York ha d no prior

e xpe ri e nc e wi th t

he c ri min a l justi c e sy ste m, a nd his ba c kgro un d d e mon str a te s th a t he wa s g e ne ra lly a har dworking man and vetera n who remained law- abiding for much of his life. Yet these fac tors

are the on ly

on e s th a t w e ig h in Yor

k’ s favo r. No t only did Yo rk wa it an e xce ssi ve a mou nt o f t ime and fa il to present a va lid r eason for the delay in f iling his motion, but ha d the district court g rante d his moti on, prejudice would have r esulted. Motions ha d been g rante d to de stroy key evidenc e in the

case , many y ear s had passed since the indictment had originally been filed, and co-defe ndants wer e imp ri so ne d a

nd ha d b e e n mo ve d to oth e r l oc a tio ns . We ig hin g a ll o f t he se fa c tor s, it c ann ot b e sa id that the district court a

bused its discretion in denying Y ork’s motion to withdraw his g uilty plea.No. 09-1728

Un ite d S tat es v . York

- 15 - III . C ON CL USI ON F or the fo re g oin g re a so ns , w e AF F I RM the dis tr ic t c ourt ’s de nia l of Yo rk ’s mot ion

to withdraw his g uilty

plea.