NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0354n.06 No. 09-4267

UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. RYSHEEN S HARP , Defendan t-Appellant. / ON AP P EAL FR OM THE UNITE D STATE S DIST RICT COURT F OR THE NORTHERN DISTRICT O F OHIO

BEFORE: DAUG HTREY, MOORE, an d CLAY, Circuit Judges. CLAY, Circ uit Jud ge. Def endant Ry sheen Sharp pled g uilty to one count of ma

king a nd forg ing an obl igation of t he United States in violation of 18 U.S

. C

. § § 4 7 1 an d 4 72; one count of manufa cturing coun t er fe i t secur ities in violation of 18 U.S.C. §§ 471 and 472; and one count of conspirac y with intent to possess counter feit obligat ions of the United States in violation of 18 U.S.C. § 371. Def endant subsequently made a motion to withdraw his g uilty plea. The district court denied Def endant’ s motion to withdraw his g uilty plea, and sentenc ed Def endant t o 51 months of incar cer ation followed by three y ear s of supervised rele ase. The district court order ed Def endant’ s sentenc e to be served consecutively with an additional sentenc e of 2 4 months of i ncar cer ation forNo. 09-4267

violation of hi s supervised relea se for a prior fede ral counterfe iting conviction. T h e district court further order ed that Def

endant’ s pay

ment of restitution f

or his pr ior counter feiting conviction be a condition of his supervised re lease in this case. Def endant ap p ea l s t h e district court’s denial of his motion to withdraw his plea, the proce dural and s u bstantive rea sonablene ss of his sentenc e, and the district court’s order that Def endant pay restitution for his prior conviction as a prec ondition of his supervised rele ase in this

case . For

the re asons stated be low, we AF F IRM the district court’s judg ment.

STATE MENT OF F ACTS Be tween Ap ri l 1, 2008 and October 1, 2008, Def endant Ry sheen Sharp, and two codefe ndants not involved in the instant appea l, Ty rone Davis, and Fatima Flowe rs, wer e involved in

a conspirac y to manufa cture co unterfe it United States curr ency . Def endant’ s involvement in the conspi r a c y c o n s isted of printing and manufa cturing counter feit curr ency , possessing counter feit bills in his wallet and apar

tment, and advising his co-de fenda nts reg arding the quality of the counter feit

curr ency they wer e manuf

actur ing. On J anuar

y 13, 2009, Def

endant and his two co-de fenda nts wer e indicted, and char g ed with

one count of making and forg ing an obligation of the United States in violation of 18 U.S.C. §§ 471 and 472; one count of manufa cturing counter feit secur ities in violation of 18 U.S.C. §§ 471 and 472; and one count of conspirac y with intent to possess counter feit obliga tions of the Un ited States in violation of 18 U.S.C. § 371.

2No. 09-4267

On April 1, 2009, F lowers pled guilty pursuant to a Rule 11 plea a g ree ment, and agree d to testify ag ainst her c o-def

endants. That same day , Def

endant was rea

rra igne d in anticipation of enter ing a g uilty plea. Howeve r, at the pretria l he aring , Def endant’ s counsel stated to the district c ourt, “I believe [Def

endant] is in

a spot wher e he would like to proce ed this afte rnoon and en t er a p l ea . ” (R

. 86, Tr. of Pretrial Hea ring 4/1/09 at 2.) Howeve r, when asked direc tly by the district court, Def endant told the district court that he was “not happy with the plea ag ree ment.” ( Id

. at 3.) The district court verifie d that Def e n d a n t was making an informed decision to reje ct the plea ag ree ment, stating, “[the district court] ha[s] an obligation to make cer tain that y ou’ve revie wed the plea ag ree ment, that y ou reje ct it, and that y ou have so indicated here today .” ( Id

. at 5.) Def

endant responde d, “y es, I revie wed it with my counsel, Your

Honor, a nd I ’m not happy

with it. But it se ems like it’s the best thing f or me to do, but no, I ’m not happy with it at all.” ( Id .) Even after the g overnme nt presse d the di strict court to

never theless acc ept Def

endant’ s g uilty plea beca

use “def endant’ s last statement was that he believes that taking the plea ag ree ment is the best thing for him,” ( id

. at 6), the district court ref used to acc ept

a g uilty plea from Def

endant on April 1, 2009, stating that it was “not taking a plea from a defe ndant [who] is not fully acc epting of the terms and conditions

. . . . Unless [Defenda nt] willingly wants to

acc ept and aff

irmatively indicates that he wants to acc ept this plea ag ree ment, then we are not g oing there .” ( Id .) On April 2, 2009, the following day , co-de fenda nt Davis enter ed a g uilty plea and ag ree d to testify ag ainst Defe ndant.

3No. 09-4267

The district court schedule d Def endant’ s trial for J une 22, 2009. I n response , the g overnme nt filed a motion reque sting that the district court continue the sentenc ing hear ings of Def endant’ s codefe n d an ts who had ag ree d to testify at Def endant’ s trial. The district court g rante d the g overnme nt’s motion to continue Flower s’ and Da vis’ sentenc ing he aring s until J uly 1, 2009. On J une 22, 2009, voir dire commence d in Def endant’ s trial. On J une 23, 2009, afte r the jury

was empane led, but befor e attorney s’ opening statements, Def endant informed the district court that he wa nted to plead guilty . Def

endant state d, Ihave f ive kids . . . . I ’m a father. I need to do what’s best, I think, for my family

.

. . . I mean, coming here with one [defense] witness, it’s f ive ag ainst me. I can’ t do that. I ’ve g ot to think about my family . I ’ve g ot to do what I believe may be smart even if it ag ainst my morals or ag ainst what I believe, or what I think. I ’ve g ot to do what’s smar

t. (R. 72, Tr. of Trial/Chang e of Plea Hea ring 6/23/09 at 9

. ) The district court replied that it was hesitant to acc ept Def

endant’ s g uilty

plea, stating , Sir, I don’t want y ou to enter a plea to a char g e and also at the same time indicate to the [c] ourt that y ou’re not g uilt y of the offe nse beca use if y ou’re not g uilty of this char g e, or if y ou believe that y ou’re not g uilty and y ou didn’t commit these acts, then we should g o forwa

rd and pre sent the matter to the jury , let a jury decide y our g uilt or innocenc e. I n terms of y our plea, if y ou wish to enter a p l ea today , if I ’m convince d that y ou’ve had sufficie nt time to discuss that decision with y our attorney , then I ’m willing to enter

tain it. But candidly , y ou’re g oing to be asked, and I will ask y ou direc tly befor e I will acc ept the plea, did y ou do the things the g overnme nt alleg es. This will be an admission of g uilt in y our case . . . . You’re asking the Court to take a plea, and in essenc e admit t h at y ou eng ag ed in the criminal conduct the g overnme nt alleg es. So if y ou’re not

. . . prepa red to do that, y ou wish to asser t y our i n nocenc e, then y ou should g o forwa rd, prese nt y our case to a jury

. I f y ou . . . ar e convince d at this time y ou wish to acknowle dg e y ou eng ag ed in wrong ful conduc t, y ou committed these ac ts, then I ’ll take the ple a. ( Id . at 9-10.) D efe ndant re sponded, “I ’m g oing to take the plea, Y our Honor.” ( Id . at 12.)

4No. 09-4267

Prior to acc epting Def

endant’ s g uilty plea, the district court verifie d that Def endant’ s g uilty plea was voluntary by discussing with Def endant the char g es ag ainst him, the rig hts Def endant was waiving by pleading g uilty , and the rang e of possible penalties. First, the district court outlined the elements of the offe nses with which Def endant was char g ed, and t he g overnme nt outlined the evidenc e it was prepa

red to prese nt at trial to demonstrate Def endant’ s g uilt. ( See id. at 14-15, 27.) Second, the district court explained that by pleading g uilty , Def endant “could be deprived of valuable c ivil rights such a s the rig ht to vote, the rig ht to hold public office , the rig ht to se rve on a jury .” ( Id . at 16.) Next, the dist rict cour

t review ed the potential pe nalties for the offe nses. The district c ourt explained that two of the offe nses car ried a twenty y ear statutory maxi mum se ntence , and that one

car ried a five y ear statutory maxi mum sentenc e. ( See id

. at 18.) The district court further explained that Def endant’ s advisory g uidelines rang e was likely to be either 18 to 24 months, 33 to 41 months,

or 41 to 51 months. Ho we v er , t h e d istrict court emphasized that prior to the prepa ration of a Presentenc e I nvestig ation Report (“PSR”) it could not know what Def endant’ s advisory g uidelines rang e would be and that, in any event, these g uidelines rang es wer e mere ly advisory

. ( See id

. at 17- 22.) Finally , the district court explained that Def endant was waiving sever al constitutional rig hts by enter ing a

g uilty plea. The district court explained, “obviously y ou’re g iving up y our rig ht to a trial to a jury here .” (

Id

. at 23.) The district court elabor ated on the trial rig hts that D efe ndant was waiving by

enter ing a

g uilty plea, stating , if there wer e a trial in this matter, y ou would be presumed innocent. The g overnme nt would be required to prove y ou g uilty of t hese offense s bey ond a reasonable doubt 5No. 09-4267

. . . . [And] if there wer e a tr ial in this case, witnesses for the g overnme nt w ould be require d to co m e fo rw ard here and testify in y our prese nce. Your attorney could cross-e x amine those witnesses, ask questions on y our behalf

. He could object to any evidenc e the g overnme nt offe rs i n the m atter, and he could off er ev i d en ce on y our behalf if y ou so chose. You’re not require d to prese nt any evidenc e, but y ou would have that rig ht if y ou wished .

. . . [I ]f there wer e a trial i n this case , y ou could call witnesses t o testify [o] n y our own behalf

. . . . You would have a right to testify , i f y ou wished . . . . You would a lso have a rig ht not to testi fy

. ( Id . at 23-25.) I n addition to detailing the above, the district court further verifie d the voluntariness of defe ndant’s plea , inquiring, You’re sure [t hat y ou would like to ple ad g uilty ] .

. . . Now, if y ou’re not admitting that y ou did these things, if y ou’re innocent or y ou believe y ou are not g uilty of these offe nses, then we will g o forwa rd with trial

. . . . Either way , the jury is empane led. They ’re here today

. But if y ou wish to maintain y our innocenc e, then we will g o forwa rd and pr esent the matter to a jury . I f y ou are admitting that y ou are g uilty of these crimes, these offe nses, then I ’ll acc ept the plea. But I ’m not

. . . g oing to acc ept a plea from an individual who

. . . believes he is not g ui l ty , or innocent of these offe nses Be cause then we w ill go for war d. Ag ain, t hat’s what the j ury is here for, to decide your g uilt or innocence

. ( Id . at 15-16.) At all times during the plea colloquy , Def endant maintained that he understood the crime to which he was pleading , and all of the conseque nces of his plea. The district court then acc epted Def endant’ s g uilty

plea. Def endant’ s co-de fenda

nts wer e subsequently sentenc ed o n J uly 1, 2009, as Def endant’ s g uilty plea r ender ed continuing their sentenc ing he aring s unnece ssary . On September 2 2 , 2 0 0 9 , Defendant moved to withdraw his g uilty plea. I n his motion to withdraw, Def

endant set forth two rea sons for reque sting withdrawa l: (1) Counsel was unawa re that the Def endant would be subject to the two level enhanc ement to his offe nse level for obstruction of 6No. 09-4267

justice contained in the s econd PS R, “[a]s such, counsel co uld not proper ly advise Mr. Sharp t hat such a possible upwar d depar ture exis ted in this case . Wit hout such knowledg e, Mr. Sharp cannot enter into a knowing and intelligent[] g uilty plea without knowin g t hat such an upwar d depar ture exis ted,” (R. 71, Mot. to Wit hdraw Guilty Plea at 3.); and (2) Def endant asser

ted t h at h e was innocent of the crimes to which he pled g uilty

. The district court denied Def endant’ s motion to withdraw on October 1, 2009, Def endant’ s schedule d sentenc ing date. Prior to denying Def en d an t ’s m otion to withdraw his g uilty plea, the district court noted that “[D]efendant does not have an absolute rig ht to withdraw his g uilty plea and has t he burden of proving that he’s entitled to withdraw it.” (R. 90, Tr. of Proce eding s 10/1/09 at 4.) The district court then expli cate d its de nial of Def endant’ s motion to withdraw his guilty plea, stating, defe ndant’s motion to withdraw his g uilty plea was filed 91 day s afte r the entry of his g uilty plea, nine day s befor e he was sentenc ed

. S o t h e [ district] court would note there ’s a substantial period of time [t hat] has passed from the time of the plea to the motion to withdraw

. . . . [I ]n this case , the basis of the defe n d an t ’s desire to withdraw his g uilty plea is primarily beca use the g overnme nt has soug ht a two-leve l enhanc ement under the advisory g uidelines for obstruction of justice

. . . . This court at the time of t h e p l ea hear ing advised the defe ndant as to an advisory g uideline calc ulation. Of course the court did not include the two-lev el o b s truction enhanc ement, but Idid fully advise the de fenda

nt of the fa ct that I would not know specific ally what the possible sanction woul d be until the prese ntence repor t was prepa red. More importantly , I also fully advised the defe ndant of the fac t [that] the [di strict] court would have to consider various statutory fac tors with reg ard to sentenc ing, the g uidelines being one of them

. . . . Counsel [for the defe ndant], in his brief to the [di strict] court, has argued that the defe ndant has consistently asser ted his innocenc e. That is not the case . . . . [At] various times he has said he was innocent, and [on] other occa sions, he h as i n d i ca ted [t hat] he was not innocent. And, under oath, sworn to tell the truth, having been a dmonished of the possible c onsequenc es of fa iling to tell the truth, admitted his guilt in this matter.

7No. 09-4267

( Id

. at 6-8.) The district court also noted that “def endant has [an] extensive, extensive history [wit h] the criminal justice sy stem, both in the s tate and the federa l sy stems. He has 16 prior convictions

. . . . He has a prior fede ral conviction, so h e i s we l l awa re, fully awa

re, of the ramifications of a g uilty plea and awa

re of all the matters reg arding the criminal justice sy stem.” ( Id

. at 8-9.) Finally , the district c ourt discussed “the potential prejudice to the g overnme nt if the motion to withdraw is g rante d.” (

Id . at 9.) The district court stated that while this wa s, not an overr iding conce rn, the g overnme nt has outlined the fac t that indeed there will be some prejudice to the g overnme nt, the fac t that two [co-defe ndants ] have been previously sentenc ed. That sentenc ing was delay ed until the trial of this matter was completed, and also the prejudice t o the g overnme nt’s ag ents having to resc hedule and appe ar, a

nd last but not least, although its not prejudice to the g overnme nt, the [di strict] court is also mindful of the fac t I believe over 30 jurors wer e . . . summoned, and then came to this court, participated in a day -long proce ss to selec t this jury

. I n these economic times, t h o s e j u rors losing their money and time awa y from their employ

ment and family

. . . while perha ps not one of the fac tors listed .

. . cer tainly is also worth noting a s Iconsider the defe ndant’s motion. ( Id . at 9-10.) There fore , the district court denied Def endant’ s motion to with d ra w h i s g uilty plea, and proce eded w ith Defe ndant’s sente ncing hear ing. Prior t o sentenc ing Def

endant, the district court acc epted Def endant’ s admission that he committed the instant crimes while on supervised rele ase for a prior fede ral counter feiting conviction. I n so doing, the district court explained that in addition to sentenc ing Def endant for the instant crimes, “the [di strict] court also h as t h e d i s cre tion to impose a sentenc e for [Defenda nt’s] supervised rele ase violation

. . . . The [di strict] court can impose two y ear s for the supervised rele ase viola t i o n . An d under the g uidelines, the [di strict] court could impose a revoc ation, rang e of imprisonment of 21 to 27 months.” ( Id . at 12.) 8No. 09-4267

The district court calc ulated Def en d an t’s offe nse level at 15, and his Criminal History Categ ory at VI

. This calc ulation rendere d an advisory g uidelines rang e of 41 to 51 months. I n sentenc ing Def

endant, the district court stat ed t h at it was “re quired to impose a sentenc e that’s sufficie nt, but not g reater than nece ssary , to comply with the pu rp o s es o f 18, United S tates C ode, Section 3553(a) , and consider and addre ss all of the fac tors set forth in the statute as it rela tes to this matter.” (

Id

. 24-25.) The district court proce eded to addre ss the rele van t § 3 5 5 3(a) fac tors. I n its analy sis, the district court “[beg an] with the nature and the circ umstances of this offe nce . . . [which] was part o f a co nspiracy that the defe ndant would manufa cture counter feit United States curr ency . . . and sell[] counter feit curr ency from his r esidenc e.” ( Id

. at 25-26.) The district court descr ibed the details of Def endant’ s counter feitin g o p erations, and stated that Def endant was observe d by

specia l ag ents attempting to manufac ture counterfe it curr ency both in his residenc e and in Flowe rs’ residenc e, and advising his co-de fenda nts “about the quality and color of counter feit curr ency .” ( Id

. at 27.) Special ag ents also observe d $350 in counter feit fede ral rese rve notes in Defe ndant’s re sidence and wa llet. Next the district court addre ssed Def endant’ s history and char acte ristics. The district court stated that De fenda

nt was, 35 y ear s old. He has one prior juvenile adjudication for car rying a conce aled wea

pon and 16 prior adult convictions, vary i n g from driving under suspension, conspirac y to make, utter and possess counter feit secur ities of an org anization, obvi ously a fede ral offe nse . . . . The only time this defe ndant has not been eng ag ed in some form of i lleg al unl awf

ul activity is when he’s been incar cer ated

. . . . he has violated t he law repe atedly without any com p u l s i o n t h roug hout his entire adult life

. . . . The defe ndant has not exhibi ted any signs of violence in the past or an y indication of suffe ri n g fr om any ty

pe of abuse. He obtained a GED and was maintaining employ ment at the time of his arr est with New Gene rations Auto Body in Cleveland, Ohio. The defe ndant has substance issues, clea rly , beg inning at ag e 16. He admitted 9No. 09-4267

using marijuana and P C P

. He has been throug h drug prog rams; however, rece ntly ref err ed to Fr esh Start for additional drug counseling

. . . . The defe ndant has four children he repor

ts seeing on a re g ular ba sis. ( Id . at 28-29.) The district court next addre ssed “[t] he need for the sentence i m posed.” ( Id

. at 30.) I n

connec tion with this § 3553(a) fac tor the district court stated, “[a]s I ’ve alre ady noted, this defe ndant has been involved in the leg al sy stem since the ag e of 17. Since that time, the defe ndant has incurre d adult convictions, servingcustody in time on sever al of his c onvictions, w ith the longe st pe riod of incar cer ation being 33 months. He was on fede ral supervised rele ase at the time of the instant offe nse.” (

Id .) More over, the district court noted that, none of the sanctions have deter red this defe ndant, and a s I ’ve a lrea dy outlined . . . this defe ndant is in no way deter red from just continuing to commit to violate the l aw. He g oes to prison. He comes back out, g oes rig ht back to violating t h e l aw . Nothing has been done to deter him in any way . The d ef endant is a threat to the public with his financ ial scheme s in our alre ady poor economy , h[i ]s continued drug use, could lea d to further

criminal ac tiviti es and e ven violence

. ( Id

. at 31.) “The re fore,” conclude d the district court, “a sentenc e at the high end of the g uideline rang e or even highe r, if I wish to vary . . . is nece ssary to protec t the public and deter this defe ndant, provide a ppropriate punishment and to allow him to address his long -time addiction.” ( Id .) The district court proce eded to sentenc e Def endant to a term of 51 months of imprisonment

o n eac h of his three offe nses, to be serve d concur rently , followed by three y ear s of su p er v i s ed rele ase. Fur

thermore , the district court imposed a term of 24 m o n t h s of incar cer ation for Def endant’ s violation of his supervised rele ase on his prior fede ral conviction to b e serve d

consec utively with his 51 month se ntence

. The district c ourt stated that “per haps [t he consec utive sentenc es] will allow the defe ndant an opportunity to obtain further training , treatment for his drug 10No. 09-4267

addiction and perha

ps provide some deter

rent eff ect and preve nt him from once ag ain continuing to violate the law a

nd ag ain, hopef

ully , that will be of some benef it to him.” (

Id . at 36.) The district court also noted that Def

endant owed $31,126.98 in r estitution pursuant to his prior counter feiting conviction, and made restitution of that sum a condition of Def endant’ s supervised rele ase in the instant case. Finally , at the conclusion of Def endant’ s sentenc ing hear ing, the district court asked Def endant if he objected to the sentenc e. ( See id

. at 38.) Def endant responde d that he did not have any objections. Def endant timely appea led both the district court’s denial o f h is motion to withdraw his g uilty plea, a nd his sentence

. DISCUSSIO N I. Motion to Withdraw Guilty Ple a A. Stand ard of Review “This Court revie ws a district court’s denial of a motion to withdraw a g uilty plea for abuse of discretion. Abuse of discretion results when the district court relies on clea rly err oneous finding s of fac t, improperly applies the law or uses an err oneous leg al standard.” United States v. Ellis , 470 F.3d 275, 280 (6th Cir. 2006) (interna l citations omitted). Moreove r, “[t] his Court may also find an abuse of discretion if the district co u rt co m m i tted a clea r err or of judgme nt in the conclusion it

rea ched upon a

weig hing of

the re levant fa ctors.” Id . (interna l citations omit ted). B. Analysis

11No. 09-4267

As a g ener al matter, we have noted that “[t] he withdrawa l o f a gu i l t y plea is inhere ntly in derog ation of the public interest in finality and the order ly administration of justice.” Id

. There fore , “[ w] hen a defe ndant has enter ed a knowing and voluntary plea of g uilty at a hear ing at wh i ch h e acknow ledg ed committing the crime, the occa sion for setting aside a g uilty plea sh o u l d s eldom arise.” Id

. This Court has stated that “[a] defe ndant does not ha ve an absolute rig ht to withdraw a g uilty plea a nd bear s the burden of

proving that he is entitled to withdraw his g uilty plea.” Id

. Fe dera l Rule of Criminal Procedur e 11(d)( 2)(B ) permits a defe ndant to “withdra w a plea of g uilty

. . . afte r the court acc epts the plea, b u t b ef o re i t imposes sentenc e if

. . . the defe ndant can

s h o w a fa i r and just rea son for requesting the wit hdraw al.” We have reiterated t hat “[ t] his rule is desig ned to allow a hastily entered pl ea made with unsure heart and confuse d mind to be undone, not to allow a defe ndant to make a tactica l decision t o en t er a p l ea, wait sever al wee ks, and then obtain a withdrawa l if he believes he made a bad choice in pleading g uilty .” Ellis , 470 F.3d at 280- 81. See also United St at es v. Ha yg o o d , 549 F.3d 1049, 1052-53 (6th Cir, 2008); United St ates v. Lineback , 330 F.3d 441, 443 (6th Cir. 2003). Thus, “[w]i thdrawa l of a p l ea is appropr iate wher e there is a rea l confusion or misunderstandingof the ter ms of the agree ment.” Id . at 281. I n deter mining whether a defe ndant has met the Rule 11(d)( 2)(B ) standar d, and ar ticulated

a re ason for

withdrawa l of his guilty

that is fair a

nd just, thi s Court looks to a set of seven f actor 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 circumstances underly ing the entry of the g uilty plea; (5) the defe ndant’s nature and backg round; (6) the deg ree to which t he defe ndant has had prior experienc e with the cr iminal just ice sy stem; a nd (7) potential prejudice to the g overnme nt if the motion to wit hdrawis gr anted.

12No. 09-4267

United States v. Dixon , 479 F.3d 431, 436 (6th Cir. 2007) (citing United States v. Bashara , 27 F.3d 1174, 1181 (6th Cir. 1994)). Howeve r, “the fac tors listed are a gene ral, non-exclusi ve li st and no one fa ctor is controlling .” Ellis , 470 F.3d a t 286. Application of the fac tors to the instant case demonstrates that the district court did not abuse its discretion in deny ing D efe ndant’s motion to withdraw his g uilty plea. Reg arding the first fac tor, the amount of t ime that ela p s ed b etwee n the guilty plea and the motion to wit hdraw , this Court has stated that “[t] he shorter the delay , the more likely a motion to wi t h d ra w will be g rante d, and a defe ndant’s rea son for filing such a motion will be more clos el y scrutinized when he has delay ed his motion for a substantial leng th of time.” Id

. Def endant moved to withdraw his g uilty plea 91 day s afte r pleading

. This Court has “fr equently relied on much shorter delay s for upholding a withdrawa l denial.” Dixon , 479 F.3d at 436. See, e.g., United States v. Valdez , 362 F.3d 903 ( 6th Cir. 2004) (upholding a denia l of a motion to withdraw due to a 75 day delay ); United St ates v. Du r ham , 178 F.3d 796 (6th Cir. 1999) (upholding a denial of a mot ion to withdraw due to a 77 day delay ); United St ates v. Baez , 87 F.3d 805 (6 t h C i r. 1 9 9 6 ) (upholding a denial of a

motion to wit hdrawdue to a 67 da y delay ). Moreove r, Defenda

nt failed to proff

er a ny

rea son explaining his 91 day delay in moving to withdraw his g uilty plea. Def endant’ s unexplained delay weig hs ag ainst him, and supports upholding the district court’s denial of h i s m o t i o n to withdraw. The district court further noted that the jury was alre ady em p a n e le d p rior to Def

endant’ s entry of the g uilty plea. Although Def endant asser

ts that the district court improperly considere d this fac t in denying his motion to withdraw, the district court did not err in considering this fac t in its analy sis.

13No. 09-4267

This Court has stated that the list of enumer ated fac tors is not exhaustive. See Ellis , 470 F.3d at 281. Thus, a district court may consider any additional fac ts rele vant to deter mining whether permitting

a defe n d an t to withdraw his g uilty plea is mandated by justice. I n this case , the jury was alre ady empane led pri o r t o De fe n d ant’s entry of the g uilty plea, and the g overnme nt had prepa red for Def endant’ s trial prior to Def endant’ s plea. These facts highlig ht the effec t of Defenda nt’s delay , and fur ther we igh in f

avor of denying D efe ndant’s motion to withdraw. Reg arding the third fac tor, Def endant did asser

t his innocenc e in his motion to withdraw his g uilty plea, stating, “Mr. Sharp has consistently asser ted his innocenc e in this case.” (R. 71, Mot. to Wit hdraw Guilt y P l ea at 3.) Howeve r, the circ umstances surrounding Def endant’ s g uilty plea underc ut Def

endant’ s asser

tion of innocenc e in his motion to withdraw. I nitially , on April 1, 2009, the district court ref

used to enter

tain Def endant’ s g uilty plea, stating that it would not “tak[e] a plea from a defe ndant that is not fully acc epting of th e t er m s an d condit ions.” (R. 86, Tr. of Pretrial Hea ring 4/1/09 at 6.) I n light of Def endant’ s initial retice nce, the district court was circ umspect in its inquiry reg arding Def

endant’ s innocenc e. Prior to acc epting Def endant’ s g uilty plea, the district court asked Def

endant sever al times whether he “did

. . . the things the g overnme nt alleg es,” (R. 72, Tr. of Trial/Chang e of Plea Hea ring 6/23/09 at 10) , “under st[ ood] .

. . that [he was] enter ing a plea of g uilty to all the counts of the indictment,” ( id at 14), and “[was] pleading g uilty

. . . to these three offe nses beca

use [he was] in fac t g uilty of these three crimes.” ( Id

. at 15.) T h er ef

o re , althoug h Def endant asser

ted his innocenc e in his motion, in view of the plea colloquy in the district court, this

asser tion rings hollow.

14No. 09-4267

Fur thermore , both Def

endant’ s backg round, a

n d h is p r io r e xp e r ie n c e w it h th e criminal justice sy stem weig h in f

avor of upholding the district c ourt’s denial of Def endant’ s motion to withdraw. Def endant’ s periodic experience with the criminal justice sy stem, descr ibed by the district court, sug g ests that Def

endant was not unsure of the ramifications of his g uilty plea, but rathe r that he pled g uilty fully understanding the conseque nces of doing so. Def endant’ s backg round, and experience with the criminal justice sy stem thus also weig h in f avor of upholding the district c ourt’s denial of Def endant’ s motion t o withdraw. The seventh fac tor, potential prejudice to the g overnme nt, also points to the fac t that the district court did not abuse its discretio n i n d en y ing Def endant’ s motion to withdraw. Prior to Def endant’ s g uilty plea, the g overnme nt had arr ang ed for the district court to continue Def endant’ s co-de fenda

nts’ sentenc ing be cause they wer e coope rating with the g overnme nt, and had ag ree d to testify ag ainst Def

endant at trial. Subsequent to Def endant’ s g uilty plea, but prior to Def endant’ s motion to withdraw, the district court sentenc ed Def endant’ s co-de fenda

nts. Gra nting Def endant’ s motion to withdraw, and requiring the g overnme nt to try Def endant in the i n s t an t ca se, would prejudice the g overnme nt as it would have to arr ang e for the co-de fenda nts , wh o m ay n o t be as cooper ative post-sente ncing , to testify

. Finally , Def

endant’ s stated rea son for moving to withdraw his g uilty plea was that at the time of Def endant’ s plea, “ther e was no sug g estion of a two level enhanc ement for an upwar d depar ture based upon obstruction of justice,” and that “[w]i thout such knowledg e, Mr. Sharp [could not] enter into a knowing and intelligent[] g uilty plea.” (R. 71, Mot. to Wit hdraw Gui l t y P l ea at 2 -3.) Although it is true that the district court did not inform Def endant at the time of his g uilty plea that

15No. 09-4267

he was exposed to this particula r enhanc ement, the district court did thoroug hly explain to Def endant the rang e of sentenc es to which he was ex p o s ed

. Prior to acc epting Def endant’ s g uilty plea the district court explained that two of the offe nses to which Def endant was pleading g uilty car ried a statutory maxi mum sentenc e of 20 y ear s of imprisonment. ( See R. 72, Tr. of Trial/Chang e of Plea Hea ring 6/23/09 at 17.) Moreove r, the district court explained that it was uncer tain of Def

endant’ s advisory g uidelines rang e. ( See id

. at 20.) The district court also stated that the g uidelines rang e was advisory , and enumerated the § 3553(a) fac tors it would consider in deter mining Def

endant’ s sentenc e. ( See id

. at 18-19.) Def endant was sentenc ed to 52 months of i mprisonment, within the rang e discussed by the district court at Def endant’ s J une 23, 2009 plea co l l o q u y . Rather, Def endant’ s stated rea son for moving to withdraw his g uilty plea is exactly the ty pe o f t actical

rec onsideration prohibited by this Court. See E llis 470 F.3d at 281. C. Summ ary The district court did not abuse its discretion in denying Def endant’ s motion to withdraw his g uilty plea. II. P roce dural an d Su bstantive Reasonableness of Defendan t’s Sentence A. Stand ard of Review This Court “re view[s] all sentenc es – whether inside, just outside, or signific antly outside the Guidelines rang e – under a defe rential abuse- of-discr etion standard.” United St ates v. Bolds , 511 F.3d 568, 578 (6th Cir. 200 7 ). This rea sonablene ss revie w “has two components: proce dural and substantive.” Id . “Consequently , our rea sonablene ss r eview require s inquiry into both the length of the sentenc e and the fac to rs evaluated and the proce dures employ ed by the district court in

16No. 09-4267

rea ching its sentenc ing determination.” United St ates v. Herrera-Zuniga , 5 7 1 F. 3 d 568, 581 (6th Cir. 2009). I n revie wing a challeng e for p ro ce d ural rea sonablene ss, this Court applies one of two standards of revie w. T his Court revie ws prese rved sentenc ing challeng es “under a defe rential abuseof-discr etion standard for rea so n ab leness.” Id

. Howeve r, “[w]here a defe ndant fails to proper ly prese rve a

n issue for a

ppeal, that c laim is subject to a revie w for pla in error only .” Id . at 580. B. Analysis Def endant challeng es the proce dural and substantive rea so n ab l en ess of his sentenc e. Specifica lly , Def

endant asser

ts that his se ntence is unr easona ble for two principal rea sons: (1) that the district court only considere d disparities with Def endant’ s co-de fenda

nts’ sentenc es in considering 18 U.S.C. § 3553(a) (6); and (2) that Def endant’ s 51 month sent en ce i s substantively

unrea sonable. 1. P roce dural Reasonab leness Prior to evaluating the proce dural rea sonablene ss of Def endant’ s sentenc e, this Court must “dete rmine what standard of revie w applies” by “dete rmin[i ng ] wh e th e r [D efe ndant] prese rved these claims for appea l.” Herrera- Zuniga , 571 F.3d at 578. As this Court held in United States v. Bostic , 3 7 1 F.3d 865 (6th Cir. 2004), “district courts are require d, afte r announcing sentenc e, to ask t h e parties whether they have any objections to the sentence that have not previously been raised.” Herrera- Zuniga , 571 F.3d at 578. I f the defe ndant fails to raise an err or “[ w] h er e t h e s en tencing judge complies with this proce dure, the defe ndant g ener ally forf eits the rig ht to challeng e on appea l any proce dural err ors to which h e did not object at the time of sentenc ing.” Id

. Unpre serve d

17No. 09-4267

proce dural challeng es will be revie wed for p l ai n er ro r only

. Id. at 581. I n this case , Def endant admits that he did not prese rve the instant proce dural challeng es, and that this Court should revie w his claims for plain er

ror. To establish p l ain error, “a defendant must show (1) error [,] (2) that was obvious or clear, (3) that aff

ecte d defe ndant’s substantial rig hts[ , and] (4) that aff ecte d the fairne ss, integ rity , or public reputation of the judicial proce eding s.” United States v. Vonner , 516 F.3d 382, 386 (6th Cir. 2008) (en ba nc). “This C ourt’s opinion in Vonner shows that plain err or revie w should be extremely defe rential to the sentenc ing judge .” United States v. W allace , 597 F.3d 794, 804 (6th Cir. 2010) Howeve r, the Vonner “majority acknow ledg ed that the cruc ial question is ‘whe ther the rec ord makes clea r that the sentenc ing judge

. . . was fully awa re of the defe ndant’s circ umstances and took them into acc ount in sentenc ing him.’” Id

. (quoting Vonner , 516 F.3d at 387). Vonner “empha siz e[s] that the rec ord must make cl ea r that the sentenc ing judge considere d the evidenc e and arguments” in sentenc ing D efe ndant. Id . at 805 (same ). Procedur al rea sonablene ss revie w “beg ins with a robust revie w of the fac tors evalua ted and the proce dures employ ed by the district court in rea chin g i t s s en t en ce.” Bolds , 511 F.3d at 578. Specifica lly , [i ]n revie wing sentenc es for proce dural rea sonablene ss the Court

must ensure that the district court: (1 ) p roper ly calc ulated the ap p l icable advisory Guideline rang e; (2) considere d the other § 3553(a) fac tors as well as the parties’ arguments for a sentenc e outsi d e the Guidelines rang e; and (3) adequa tely articulated its rea soning for imposing the particula r sentenc e chosen, including any reje ction of the parties’ arguments for an outside-Guidelines sentenc e and any decision to deviate from the a dvisory Guidelines ra

ng e. 18No. 09-4267

Id . at 581. I n revie wing the district court’s application of the § 3553(a) fac tors “ther e is no require ment

. . . that the district court en gage i n a ri tualistic incantation to establish consideration of a leg al issue,” or that it “make specific finding s relate to eac h of the fac tors considere d.” Id

. Howeve r, in order for a sentenc e to be proce durally rea sonable “the re co rd m u s t contain the district court’s rationale for conclud i n g t h at t he sentenc e imposed is sufficie nt but not g rea ter than nece ssary , to comply with the purposes of sentenc ing set forth in 18 U.S.C. § 3553(a) .” Id

. The dis t ri ct court

m u st provide an “ar

ticulation of the rea sons [why it] rea ched the sentenc e ultimately imposed

. ” United States v. Jack

son , 408 F.3d 301, 305 (6th Cir. 2005). This Court has further explained that, “[s] imply listi ng the § 3553(a) fac tors and various char acte ristics of the defe ndant without ref err ing to the applicable Guidelines rang e or explaining the decision to stay within or deviate from that rang e is insufficient.” Bolds , 511 F.3d a t 580 (quoting United States v. Cousins , 469 F.3d 572, 577 ( 6th Cir. 2006)). I nstead, to b e p rocedurally rea sonable, “[t] he district court must provide a clea r explanation of why it has

. . . chosen the particula r sentenc e imposed, reg ardle ss of whether it is within or outside of the Guidelines.” Id

. Section 3553(a) (6) require s sentenc in g co u rt s to “conside r the need to avoid unwar rante d sentenc e disparities among de fenda nts with sim ilar re cords who ha ve bee n found g uilty of simil ar criminal conduc t.” Moreove r, [i ]n considering a sent encing judge ’s obligation to addre ss sentenc ing disparities under § 3553(a) (6), thi s C o u rt h as been clea r that, the need to avoid unwar rante d sentenc e disparities among defe ndants with simil ar rec ords who have been found g uilty of simil ar conduct , d o es not apply to co-c onspirators. This fac tor conce rns national disparities betwee n defe ndants with simil ar criminal histories convicted of simil ar c onduct. 19No. 09-4267

W allace , 597 F.3d at 803 (internal quotations and c itations omi tted). I n this case, De fenda

nt contends that his “sente nce [is] proce durally unrea sonable because the [di strict] court, in evaluating sentenc ing disparities, utiliz ed t he [Defenda nt’s] co-de fenda

nts, instead of other simil arly situated d ef endants nationally in deter mining this fac tor.” (B r. of Appellant at 21.) I t is true that in sentenc ing Def endant the district court stat ed t h at as to Def endant’ s two [co-defe ndants], there’s an arg ument that the sentenc e the c ourt would impose would be disparate betwee n the sentenc e of the [co-defe ndants], a 16-month sentenc e on one defe ndant and a one-da y sentenc e on the other defe ndant. Howeve r, it must be noted that the [co-defe ndants] had Criminal History Categ ory I and I I I

. They rec eived a reduc tion for acc eptanc e of responsibility , they rec eived reduc tion for substantial assistance

. Neither of those defe ndants in any way have the kind of rec ord this defe n d ant has, nor do they in any way approa ch his prolific criminal conduct. (R. 90, Tr. of Proc eeding s 10/1/09 at 32.) This Court has stated that in sentenc ing a defe ndant, “[a] district judge is not required to consider the disparity betwee n the sentenc es o f co-de fenda nts. A district judge , howeve r, may exercise his or her discretion and deter mine a defe ndant’s sentenc e in light of a co-de fendant’s sentenc e.” W

allace , 597 F.3d at 803. Howeve r, to be proce durally rea sonable, “[t] he district judge is

. . . under a more rig orous duty to make expli cit its consideration of the fac tors when a defe ndant makes a particula r ar g ument.” United States v. Simmons , 501 F.3d 620, 625 ( 6th Cir. 2007). I n his sentenc ing memorandum to the district court, De fe n d an t p ointed out that he “wa s indicted with two other individuals in a conspirac y to manufa cture counter feit money . . . . Acc ording to the PSR , [co-defendant] Mr. Davis rec eived 16 months [i ncar cer ation]. [C o-def endant] Ms. Flowe rs rec eived one day in custody .” (R. 70, Def .’s Sentencing Mem. at 4.) Defen d an t fu rt h er 20No. 09-4267

argued that “[t] he PSR sug g ests a sentenc e of 51-63 months in this case for Mr. Sharp, the disparity in sentence s is obvious.” ( Id . at 5.) I t appea rs that the district court addre ssed the disparity in Def endant’ s sentenc e as compar ed to those of his co-de fenda

nts’ beca use Def e n d a nt raised the disparity in his sentenc ing memorandum to the di strict court. Moreove r, Defenda nt did not argue before the district court that his sentenc e

was disproportionate to those of defe ndants nationwide. There fore , the district court was not under

a specific obligati o n to addre ss this argument in discussing the § 3553(a) fac tors at Def endant’ s sentenc ing. See Simmons , 501 F.3d at 625 (stating that when not raised by a defe ndant, a district court ne ed not addr ess eve ry § 3553(a) fac tor in detail). The district cour

t thus did not plainly

err in its di scussion of 18 U.S.C. § 3553(a)( 6). 2. Sub stantive Re asonab leness Def endant also challe n g es the substantive rea sonablene ss of his sentenc e. This Court’s revie w of a sentenc e for substant i v e re as onablene ss “re quires inquiry into

. . . the leng th of the sentenc e and the fac tors evalua ted

. . . by the district court in rea ching its sentenc ing deter mination.” Herrera- Zuniga , 571 F.3d at 581. I n contra st to the require ments for proce dural rea sonablene ss revie w, a d ef en d ant “is not require d to object to the substantive rea sonablene ss of his sentenc e to prese rve the issue for appea l.” Id

. at 578. Review for substantive rea sonablene ss rev i ew focuse s on the appropr iateness of “the leng th of the sentenc e,” id. at 581, and scrutinizes w hether a sentenc e is a dequate , but not “g reater than nece ssary to acc omplish the sentenc ing g oals identified by Congr ess in 18 U.S.C. § 3553(a) .” Id

. at 590. This Court h as el ab o rate d that, “[a] sentenc e may be considere d substantively

21No. 09-4267

unrea sonable when the district court selec ts a sentenc e arbitra rily , bases the sentenc e on impermissible fac tors, or g ives an unrea sonable amount of weig ht to any pertinent fac tor.” United States v. Presley , 547 F.3d 625, 630- 31 (6th Cir. 2008). The substantive rea sonablene ss inquir y “ ta k e [s ] in to a c c o u n t th e to ta li ty o f the circ umstances, includi n g t h e ex t en t of any varia nce from the Guidelines rang e.” Bolds , 511 F.3d at 581. I n this inquiry the Court “appl[ies] a rebuttable presumption of substantive rea sonablene ss” to “sente nces within the Guidelines.” Id

. Moreove r, t his Court has clarified that, “[r] eg ardle ss of whethe r [this Court] would have imposed the same sentenc e, [t his Court] must aff ord due defe renc e to the district court’s decision to deter

mine the appropr iate leng th of defe ndant’s sentenc e, so long as it is justified in light of the r eleva

nt § 3553(a) f

actor s.” Herrera- Zuniga , 571 F.3d at 591. As discussed above, the district court provided am p l e re asons for setting Def endant’ s sentenc e at 51 months. I n its discussion of the § 3553(a) fac tors during Defen d an t ’s s en tencing hear ing the district c ourt expressed conce rn with D efe ndant’s high rate of rec idivism

. The district court stated, “this defe ndan t h as b ee n involved in the leg al sy stem since the ag e of 17, since that time, the defe ndant has incurre d adult convictions, serving custody in tim e o n sever al of his convictions

. . . . He was on fede ral supervised rele ase at the time of the instant offe nse.” (R. 90, Tr. of Proce eding s 10/1/09 at 30.) Howeve r, explained the district court,

none of the sanctions have deter red this defe ndant

. . . this defe n d an t is in no way deter red from just continuing to

. . . violate the law. He g oes t o p ri s o n , h e comes back out, g oes rig ht back to violating the law. Nothing has bee n done to deter him in any way . The defe ndant is a threat to the public with his financ ial scheme s in our alre ady poor economy , has continued drug use, could lead to furthe r cr i minal activities and e ven violence

.

22No. 09-4267

( Id

. at 31.) Ba sed on these fac ts, the district court conclude d that, “ a sentenc e at the high end of the g uideline rang e or even highe r, if I wish to vary . . . is nece ssary to protec t the public and deter this defe ndant, provide appropr iate punis hment and to allow him to addre ss his long- time addiction.” ( Id .) Thus, in the district c ourt’s view, Def endant’ s 51 month sentenc e was nece ssary in lig ht of the § 3553(a ) fa ctors, espe cially Def endant’ s history

of re cidivism. C. Summ ary The district court did not abuse i t s d i s cr eti on in sentenc ing Def endant to 51 months of imprisonment. III. Consecutive Sente nces A. Stand ard of Review We revie w “[t] he district court’s decision whether to impose a co n cu rre nt or consec utive

sen t en ce . . . for abuse of discretion.” United St ates v. Berry , 565 F.3d 332, 342 (6th Cir. 2009). Moreove r, a district court “does not abuse its discretion when it makes clea r the rationale under which it has imposed the consec ut i v e s entence and seeks to ensure an appropr iate incre mental penal t y fo r the i nstant offe nse.” Id

. (quoting United St ates v. Owens , 159 F.3d 221, 230 (6th Cir. 1998)). B. Analysis When a district court is sentenc ing a defe n d an t with a prior undischarg ed sentenc e, “the district court may impose a consec utive or concur rent sentenc e.” Id

. Howev er , t h i s Court has admonished that “[a]lt houg h a district court reta ins discretion in im p o s i n g a consec utive or

23No. 09-4267

concur rent sentenc e, such discretion is not unfetter ed and the rec ord on appea l should show that the district court turned its attention to § 5G1.3(c ) and the rele vant commentar y in its deter

mination of whether to impose a concur rent or consec utive sentenc e.” Id

. Moreove r, “the [di strict] court must make ge nera lly clea

r the rationale under

which it has i mposed the consecutive sentence and seeks to ensure an appropr iate incre mental penalty for the instant offe nse.” United States v. Sawyers , 360 F. App’ x 621, 624 (6th Cir. 2010) (quoting Owens 159 F.3d at 230). I n deter mining whether consec utive or concur rent sentenc es are appropr iate, “[t] he [di strict] court must consider the fac tors listed in 18 U.S.C. § 3553(a) in making t h e deter mination. Fur thermore , the [di strict] court should also consider the rele vant Guidelines rec ommendations and policy stat em en t s . ” B er r y , 565 F.3d at 342. The application notes to the g uidelines also provide g uidance for deter

mining whether to impose consec utive or concur rent sentenc es. Relevant to this

case is Application Note 3(C), which “provide s that when a defe ndant is on fede ral or on state parole

or supervised rele ase at the time of the instant offe nse, ‘the Comm i s s ion rec ommends that the sentenc e for the instant offe nse be impose d co n s ec u tively to the sentenc e imposed for the

revoc ation.’” Id . (quoting Application Note 3( C) to U.S.S.G. § 5G1.3(c))

. Notwithstanding a district court’s require ment to take the § 3553(a) fac tors and the rele vant g uidelines provisions into acc ount in imposing consec utive senten ce s , in revie wing the district court’s decision, this Court views th e sentenc ing rec ord in its entirety , and does not require the district court to eng ag e in a se para te expli cit consideration of the rele vant statutory and g uidelines provisions in im posing c onsecutive se ntence s. This Court, has never held that a dis trict court is re q u i red to repe at S ection 3553(a) analy sis in its considera

tion of the consec utive or concur rent nature of a sentenc e . . . Requiring 24No. 09-4267

the district courts to conduct a separ ate Sec tion 3553(a) a naly sis for the conc urre nt or consec ut i v e n at u re of the sentenc e would be repe titions and unwar rante d

. . . district courts have no such distinct obligation. Id . at 343. I n this case, the district c ourt sy stematically considere d eac h of the § 3553(a) fac tors prior to announcing Def

endant’ s sentenc e. Mo re o v er, the district court expressed conce rn reg arding defe ndant’s history of rec idivism , and the fac t that Def endant rema ined undeter red by his prior convictions and sentenc es. ( See R. 90, Tr. of Procee dings 10/1/09 at 31.) “The ref ore,” conclude d the district court, a

sentenc e at the high end of the g uideline rang e or even highe r, if I wish to vary

. . . is nece ssary to pr otect the public and deter this defe ndant, provide appropr iate punishment and to allow him to address his long- time addiction.” Id

. Fur thermo r e , immediately prior to announcing Def endant’ s sentenc e the district court stated: I will now turn to the

. . . supervised rele ase violation and impose a sentenc e for that violation

. . . . I n this case , the application of policy statements found in Chapter 7 in the g uideline manual result in a rang e of imprisonment of 21 to 2 7 m o n t h s . That rang e of imprisonment is based upon the most serious violation, and the defendant h aving a Criminal History Categ ory VI

. Pursuant to the United States Sentencing Guidelines 7B1.3( f), any terms of i m p risonment the court imposes upon the revoc ation of prob ati on or supervised rele ase shall be order ed to be serve d consec utively to any sentenc e of imprisonment the o f f ender is serving , whether or not the sentenc e of imprisonment being serve d resulted from the conduct that is the bases of the revoc ation, probation or supervised rele ase. I n this case , the court will not revisit, althoug h I will touch upon ag ain, the 3553(a) fac tors in imposing a sentenc e. I ’ve alre ady addre ssed them. Most, if not all of the fac tors the court addre ss ed i n imposing a sente nce in the unde rly ing c ase a pply in this m atter. Most importantly , the need for the sentenc e imposed, just punishment, adequate deter renc e, protec t the public, ref

lec t t h e seriousness of the offe nse, including the offe nder’ s conduct and condition.” ( Id . at 35-36.)

25No. 09-4267

Ba sed on these fac ts, a

nd the district c ourt’s thoroug h analy sis of the § 3553(a) fac tors, the dis t ri ct co u rt sentenc ed Def endant to a 24 month term of incar cer ation for the supervised rele ase violation, a

nd a 51 month ter

m of incar cer ation for the instant of fense to be serve d consec utively

. I n so sentencing

Def endant, the district c ourt stated “pe rhaps [the sentenc e announced] will allow the defe ndant an opportunity to obtain further training , treatment for his drug addiction and perha ps provide some deter

rent eff ect and preve nt him from once ag ain continuing to violate the law.” ( Id

. at 36.) I t is true that the di strict court did not expli citly announce wh i ch s entenc ing fac tors it was considering in imposing Def endant’ s consec utive terms o f i m p ri sonment. Howeve r, the district court did consider the nece ssary aspec ts of Def endant’ s individual rec ord, and repe atedly expressed its conce rn reg arding Def endant’ s history of rec idivism

. I n so doing, the district court “ma[d]e g ener ally clea r the rationale under

which it has i mposed the consecutive sentence.” Sawyers , 360 F. App’ x at 624.

C. Summ ary The district court did not abuse its discretion in imposing Def endant’ s 24 and 51 month terms of imprisonment consec utively

. IV. Restit ution as Pre condition for Su pervised Rele ase A. Stand ard of Review W e revie w a district court’s imposit ion of supervised rele ased conditions for abuse o f discretion. See United States v. Modena , 302 F.3d 626, 636 (6th Cir. 2002); United States v. Bortels , 962 F.2d 558, 560 ( 6th Cir. 1992) (per curiam).

26No. 09-4267 B. Analysis This C o u rt h as explained that “[w]e revie w the imposit ion of a specia l condition of supervised r elea se alongtwo dimensions. One dimension is procedur al: [t ]he district c ourt, at the time of sentenc ing, must state in open court the rea sons for its imposit ion of the particula r sentenc e, includi n g i t s ra tionale for mandating specia l conditions of supervised rele ase.” United States v. Carter , 463 F.3d 526, 528- 29 (6th Cir. 2006) (interna l quotations and citations omitt ed). The second dimension is substantive: “whe re a condition of supervised rele ase is rea sonably related t o the dual g oals of proba t i o n , t h e reha bilitation of t he defenda

nt and the protec tion of t he public, it must be upheld.” United States v. Thomas , 212 F. App’x 483, 486 (6th Cir. 2007) (quoting Bortels , 962 F.2d at 560). There fore , “[a] sentenc ing court may impose a non-mandatory condition of supervised rele as e o n l y if it meets three require ments.” Carter , 463 F.3d at 529. We have detailed these three require ments as follows: First, the condition must be rea sonably related to se vera l se ntencing fac tors. These fac tors are the nature and circ umstance s o f t h e offe nse and the history and char acte ristics of the defe ndant[,] and the need for the sentenc e i m p o s ed to aff ord adequate deter

renc e to criminal conduct[,] to protec t the public from further crimes of the defe ndant[ , ] an d to provide the defe ndant with neede d vocational and education al t ra i ning, medical car e or other corr ectional treatment in the most eff ective manner . Second, the condition must involve no g reater deprivat i o n of liberty than is rea sonably nece ssary for sever al sentenc ing purposes. These purposes are to aff ord adequate deterrenc e to criminal conduct[,] to protec t the public from further cr i m es of the defe ndant[,] and to provide the defe ndant with neede d educational or vocational training , medical car e or other corr ectional treatment in the most eff ective manner. Third, t he cond i t i o n m u s t be consistent with any pertinent policy statements issued by

the SentencingCommi ssion. Id

. Finally , “a condition must satisfy all three require ments[, h]owever, a condition need not satisfy

ever y single fac tor and purpose within each of the first two re quirements.” Id

.
27No. 09-4267

I n this case , the district court imposed restitutio n on Def endant at the behest of the g overnme nt. After a

nnouncing Def

endant’ s sentence , the district court a sked whe ther ther e we re “any other issues the cour t n ee d [ ed ] to addre ss? ” (R. 90, Tr. of Procee dings 10/1/09 at 37.) The g overnme nt responde d, “Your Honor, s i n ce the court is terminating the supervised rele ase on the 2003 case , the g overnme nt would reque st that the court order pay ment of restitution on that case to be in order as part o f h i s s u p er v i s ed rele ase terms on the new case . He does jointly and severally

owe more than $31,000 in restitution and has not made any pay ments to that to date.” (

Id .) Ba sed

on this reque st, the district court stated: “[w]e will do so. We will make that as a condition, as well as in the newcase pay

ment of re stitut ion of $31,126.98.” ( Id .) The district court did not expli citly addre ss restitution in relation to the § 3553(a) fac tors, or Def endant’ s offe nse, howeve r, the relationship is nonetheless clea r based on the district co u rt ’s thoroug h expli cation of its rea son for imposing Def endant’ s 51 and 24 month sentenc es. The supervised r elea se condition is rea sonably related to the § 3553(a) fac tors discussed by the district court throug hout the sentenc ing hear ing. I n imposing Def endant’ s sent en ce, the district court expressed conce rn over Def endant’ s history of rec idivism , and expressed hope that his sentenc e in the instant case wo uld deter Def endant from committing future crimes. ( See, e.g., id

. at 36.) Requiring Def

endant to pay re s tituti on as a prec ondition for supervised rele ase was rea sonably related to the district court’s de terre nce g oals. Fur thermore , imposit ion of restitution for counter feiting as a condition of supervised rele ase for a counter feitingconviction i s rea sonably related t o the underlying c ounterfe iting off ense. The

28No. 09-4267

amount of restitution imposed as a condition of supervised re l ea se for the instant conviction was calc ulated based on Def

endant’ s previous fede ral c o u n te rfe iting conviction. Both the conviction and the re stitut ion are imposed for tra nsg ressing the s ame f

eder al prohibition. C. Summ ary The district court did not abuse its discretion in imposing restitution as a condition of Def endant’ s supervised r elea se. CONCLUSION For the fore g oing r easons, we AF F IRM the district court’s judg ment.

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