NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0293n.06 Nos. 08-4140/09-3207 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. BI L L Y J ACK FI TZ MORRI S, Def endant- Appellant.

______________________________ ) ) ) ) ) ) ) ) ) ) O N A P P E A L F R O M T H E UNI TED STATES DI STRI CT COURT FOR THE SOUTHERN DI STRI CT OF OH I O O P I N I O N

Be fore : MOORE and WHI TE, Circuit J udg es; VARL AN, District Judge. * HELE NE N. WHITE , Circuit Judge. Pursuant to a Plea Ag ree ment, Def endant Billy J ack Fitzmorris pleade d g uilty of conspirac y to possess with intent to distribute narc otics, and possession of a firea rm in further ance of a drug -traf ficking offe nse. Be fore Fitzmorris was sentenc ed on these char g es, he esca

ped from custody and commit ted a series of other c rimes, including bank robbery and hostag e taking

. In this consolidated appea l, Fitzmorris challeng es the district court’s denial of his motion to withdraw his g uilty pleas in the first case , and the proce dural reas o n ab l eness of the
sentenc es imposed in both case s. We AF F IRM

. I. BACKG ROUND

The Honora

ble Thomas A. Var lan, United States District J udg e for the E astern D istrict of * Tenne ssee, sitting by

desig nation. -1-Nos. 08-4140/09-3207

United States v. Fitzmorris A. Drug and Fire arm s Of fenses (No. 08-4140) On April 21, 2005, while on parole from a s t ate sentenc e, Fitzmorris was appre hended in possession of marijuana , coca ine powder and a stolen firea rm. A sea

rch of Fitzmorris’s residenc e yielded more drug s and another stolen g un. On J uly 6, 2006, Fitzmorris was char g ed wi t h : (I ) conspirac y to possess with intent to distribute over 500 g rams of coca ine and over 5 g rams of coca ine base, in violation of 21 U.S.C. §§ 841(a )(1) , 841(b)( 1)(B )(ii)-( iii) and 846; (I I , VI I I ) possession of firea rms in further ance of a drug -traf ficking crime, pursuant to 18 U.S

. C

. § 9 24(c) (1)( A)(i) , (c) (1)(C )( i); (I I I , I X-X) felon in possession of firea rms and ammunition under 18 U.S.C. §§ 922(g )(1) , 924(a) (2); (I V-VI I ) possession w ith intent to distribute coca ine, marijuana , and coca ine base, all in violation of 18 U.S.C. §§ 841(a) (1), (b)(1) ; (XI ) poss ession of cocaine, pursuant to 21 U.S.C. § 844(a); and ( XI I ) cr iminal forfe iture under 18 U.S.C. § 924(d)(1). On J anuar

y 29, 2007, Fitzmorris signe d a written Plea Ag ree ment pursuant to which he pleade d g uilty to Counts I and I I

. On Fe bruar y 16, 2007, he met with his probation office r and signe d the following written statement: “I acc ept full responsibility for the conduct underly ing my pleas of g uilty befor e J udg e Fr ost. I re gret becoming involved in narc otics traff icking and blame only my self. I am truly remorse ful and acc ept complete responsibility for my actions.” (Prese ntence I nvestig ation Report for D rugOffe nse [hereina fter 2006 PSR] at ¶¶ 51- 52.) On April 2, 2007, Fitzmorris esca ped from custody and eng ag ed in a day -long crime spree , the details of which are discussed below. Then, on May 30, 2007, the day befor e he was schedule d
to be sentenc ed in his drug case , Fitzmorris moved to withdraw his pleas, claiming that they resulted from coer cion, that he was misled by his attorney and that the Gover nment had brea ched the terms -2-Nos. 08-4140/09-3207

United States v. Fitzmorris of the Plea Ag ree ment. The district court took the motion under ad v i s em en t and g rante d Fitzmorris’s attorney ’s motion to withdraw from the case . Fitzmorris rene wed his motion throug h substitut e counsel. On J une 5, 2008, afte r an evidentiary h ea ring , the district court denied Fitzmorris’s motion t o withdraw his plea s. Fit z morris’s Presentenc e I nvestig ation Report (“PSR”) deter mined that, due to prior convictions of burg lar y an d burg lary /robbery , Fitzmorris was a car eer offe nder under the U.S. Sentencing Commi ssion Guidelines (“the Guidelines”)

. As a car eer offe nder, Fitzmorris’s Guidelines sentenc ing rang e for Count I was 360 months to life, with 60 additional months to be

serve d consec utively on Count I I , pursuant to 18 U.S.C. § 924(c) (1)( A)(i)

. On Aug ust 14, 2008, the district court sentenced Fitzmorris to 360 months on Count I , the bot t o m of t he Guidelines rang e, and 60 months on Count I I , to be serve d consec utively

. B. Escape and Related Of fenses (No. 09-3207) On the morning of April 2, 2007, while awa iting sentenc ing in his drug and firea rms case s, Fitzmorris was taken to St. Eliz abeth Hospital in Young stown, Ohio, to rec eive medical attention. Using a pair of toenail clippers he smugg led into the hospital, Fitzmorris cut throug h the plastic cuff s that restra ined his wrists, overpow ere d a corr ections office r and g rabbe d his service revolve r. Now

arme d, Fitzmorris exchang ed uniforms with the office r, threatened two hospital employ ees and three other office rs into submissi on, and esca ped from the hospital. Once outside, Fitzmorris hijacked a

car and its occupa

nt, and heade d for Columbus on the interstate (the owner of the car esca ped during

a short stop). L ater that day , in the Colombus suburbs, Fitzmorris robb ed two separ ate banks at g unpoint, collecting over $50,000. When located by police, Fitzmorris led them on a h i gh -s p eed -3-Nos. 08-4140/09-3207

United States v. Fitzmorris chase that ended wh en h i s vehicle cra shed into a parke d van. Unhurt and undeter red, Fitzmorris abandone d the stolen money and g un, and fled on foot to a near by house occupie d by an acc ounting office

. After kicking down the door, Fitzmorris drag g ed a fema le employ ee to the top floor and kept her hostag e for

most of the afte rnoon, until he willingly surre ndere d. I n an indictment filed J une 23, 2008, Fitzmorris was char g ed with seven additional counts: (I ) esca pe under 18 U.S.C. § 751(a) ; (I I , I V) arme d bank robber y pursuant to 18 U.S.C. §§ 2113(a) , (d); (I I I , V) possession of a firea rm during crimes of violence, in vio l at i on of 18 U.S.C. §§ 924(c) (1)( A), (c )(1) (C)(i); (V I ) fe lon in possession of a firear m under 18 U.S.C. §§ 922(g )(1) and 924(a) (2); and (VI I ) hostag e taking , in violation of 18 U.S.C. § 1203. On September 17, 2008, a jury convicted F itz morris of all counts. The PSR ag ain classified Fitzmorris as a car ee r o ff ender , resulting in a presumptive Gui d el i nes rang e of 360 months to life for his esca pe, robber

y , felon-in- possession and hostag etaking convictions. Howeve r, only the hostag e-taking offe nse actua lly qualified for such a sentenc e; the esca pe, felon-in- possession and bank-r obbery convictions wer e statutorily limit ed to 60, 120 and 300 months, respe ctively

. Fitzmorris’s firea rm offe nses each car

ried consec utive, mandatory
sentenc es of at least 300 months. On Fe bruar

y 23, 2009, the district court imposed concur rent sentenc es of 60 months on Count I (esc ape) , 300 months on Counts I I and I V (bank robber y ), 120 months on Count VI (fe lon in posse ssion of a firea

rm) and 360 months on Count VI I (hostag e taking ). The court imposed the statutory maxi mum for eac h convictio n ex cept the hostag e-taking offe nse, for which it sentenc ed Fitzmorris to the lower end of the Guidelines rang e. Fitzmorris also rec eived the statutory minimum -4-Nos. 08-4140/09-3207

United States v. Fitzmorris of 300 months eac h for Counts I I I and V (fire arms offe nses), to be serve d consec utively to the other
counts. Fitzmorris’s overa ll sentenc e was 80 y ear s, in addition to the 35 y ear s he re ceived in his drugand fire arms ca ses. II. DISCUSS ION Fi t z m o rr i s raises two issues on appea l. First, he claims that the district court abused it s d i s cr etion by denying his motion to withdraw his g uilty pleas in the drug and firea rm s ca s es . Second, he argues that the court treated the Guidelines as mandatory when sentenc ing him in both

case s. A. Withdraw al of

Guilty P leas Fe dera l Rule of Criminal Procedur e 11(d)( 2)(B ) allows a defe ndant to withdraw a g uilty plea afte r its acc eptanc e by the trial court and befor e sentenc ing if he “ca n show a fair and just rea son for reque sting the withdrawa l.” The purpose of this Rule is “to allow a hastily enter ed plea made with

unsure hear

t a nd confuse d mind to be undone, not to a llow a defe ndant to make a tactica l de cision
to enter a plea, wait sever al wee ks, and then obtain a withdrawa l if he believes he made a bad choice in pleading g uilty .” United States v. W a l den , 6 2 5 F.3d 961, 965 (6th Cir. 2010) ( quoting United States v. Ellis , 470 F.3d 275, 280-81 (6th Cir. 2006)) (other citation omitted). The burden is on the defe ndant to prese nt proper g rounds for g ranting the motion. United States v. Bazzi , 94 F.3d 1025, 1027 (6th Cir. 1996). This Court has held that when deter mining whether to g rant a d ef endant’ s motion to withdraw a

g uilty plea, district cour

ts must consider: (1) the amount of time that elapse d betwee n the plea and the motion to withdraw it; -5-Nos. 08-4140/09-3207

United States v. Fitzmorris (2) the prese nce (or absenc e) of a valid rea son for the failure to move for withdrawa l ear lier in the proce eding s; ( 3) whether the defe ndant has asser ted or maintained his innocenc e; (4) the circ umstances underly ing the entry of the g uilty plea; (5) the defe ndant’s nature and backg round; (6) the degr ee to which the defe ndant has had prior experienc e with the criminal justice sy stem; and (7) pote ntial prejudice to the g overnme nt if the motion to wit hdrawis gr anted. United States v. Haygood , 549 F.3d 1049, 1052 (6th Cir. 2008) ( quoting United States v. Bashara , 27 F.3d 1174, 1181 (6th Cir. 1994), abrogated in part by statute on other grounds as stated in United States v. Caseslorente , 220 F.3d 727, 734 (6th Cir. 2000)). This list is notexhaustive, and the relative importance of eac h fac tor is depende nt upon the circ umstances of eac h particula r case . Id. ( citing United States v. Triplett , 828 F.2d 1195, 1197 ( 6th Cir. 1987)). This Court revie ws the denial of a motion to withdraw a g uilty plea for abuse of discretion. Id. “A district court abuses its discretion wher e ‘it relies o n clea rly err oneous finding s of fac t, or when it improperly applies the law or uses an err oneous leg al standard.’ ” Id. ( quoting United States v. Spike s , 158 F.3d 913, 927 ( 6th Cir. 1998)). The district court held an evidentiary hear ing at which Fitzmorris testified and called two witnesses. Ba sed on these testimonies, the court conclude d that ever y Bashara fac tor but one, prejudice to the Gover

nment, weig hed ag ainst allowing Fitzmorris to withdraw his pleas. Fitzmorris claims that all seven elements of the Bashara t es t we i gh i n his favor , but his arguments are unconvincing

. 1. Timing of Motion to Withdraw Fitzmorris pleade d g uilty on J anuar y 29, 2007, but did not move to withdraw his pleas until May 30, 2007, on the eve of sentenc ing. The district court did not abuse its discretion in finding that

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United States v. Fitzmorris this four -month delay weig hed ag ainst g ranting Fitzmorris’s motion. I ndeed, this Court ha s found delay s less than four mo n t hs to be ex cessive. See, e.g. , United St ates v. C innamon , 112 F. App’x 4 1 5 , 418 (6th Cir. 2004) (three months); United States v. Baez , 87 F.3d 805, 808 (6th C i r. 1 9 9 6 ) (six ty -seve n day s); United States v. Goldbe rg , 862 F.2d 101, 104 ( 6th Cir. 1988) (fifty -five da y s). 2. F ailure to Withdraw Pleas Earlier At the evidentiar

y hear ing, Fitzmorris testified that, the very evening afte r enter ing his g uilty pleas, he asked his attorney to withdraw them. Def ense counsel testified and acknow ledg ed that Fitzmorris asked to withdraw his pleas at some point, but also stated that on sever al other occa sions, Fitzmorris “would g o from being reluc tant about enter ing a plea to desiring to cooper ate.” (08-4140 R. 216, Evi d en t iary Hr’g Tr. 31.) Def ense counsel also testified that, due to an incident afte r Fitzmorris’s chang e-of

-plea hear ing, the Gover

nment informed him that it was unlikely to move for 1 a downwa

rd depa rture be cause of the pe rce ption that Fitzm orris wa s untrustworthy

. The district court conclude d that Fitzmorris delay ed filing his motion simply beca use he was

unsure whether to w ithdraw his ple as. The district cour t noted that Fitzmorris did not e x press any desire to withdraw his pleas when meeting with his probation office r, but instead submitt ed a written
statement acc epting resp o n s i b i l i t y for his acts. The court also observe d that Fitzmorris filed his motion after he revie wed the PSR, which rec ommended a se ntence of 35 y ear s. The rec ord supports the district c ourt’s conclusion. Additionally , in a letter to his attorne y dated Marc h 18, 2007, Fitzmorris stated : “i f we can’ t fix these cra zy alleg ations

. . . or if [t he Following the hear ing, Fitzmorris was found to have remove d a round brass plate outlet 1 cover from the courthouse and attempted to smugg le it back to his jail cell, wra pped in Saran Wrap. -7-Nos. 08-4140/09-3207

United States v. Fitzmorris prosec utor] and ATF are not willing to work with me . . . , I wish to withdraw my plea and have my trial!” (08-4140 R. 186, 2d Mot. Wit hdraw Plea, Attach. A, at 1.) At most, this letter shows that six

wee ks afte r enter ing his g uilty pleas, Fitzmorris was hav i ng second thoughts based on the

rec ommended sentenc e; it is not evidenc e that he pleade d with an “unsure hear t and confuse d mind.” Bashara , 27 F.3d at 1181. Thus, the district court did not abuse its discretion in weig hing this fac tor ag ainst g rantingFitzmorris’s motion. 3. Assert ion of

Inn ocence Fitzmorris claims that he maintained his innocenc e throug hout the case , but the rec ord belies his asser tion. At his chang e-of

-plea hear ing, the district court went to g reat leng ths to ensure that Fitzmorris understood eac h element of the char g es and to asce rtain the voluntariness and basis of his pleas. A few wee ks later, Fitzmorris g ave his probation office r the signe d statement in which he accep t ed complete responsibility for his actions. On this rec ord, Fitzmorris’s position that he maintained his innocenc e throug hout the case is u n t en ab l e. The district court did not abuse its discretion in weig hing this fa ctor a g ainst him. 4. Circum stances Surroundi ng Guilty P leas Fitzmorris alleg es that his attorney told him the maxi mum rang e for his crimes under the Guidelines would be ten y ear s, and that he could expect the Gover nment to file a motion to reduc e this amount based on his cooper ation. He claims that he did not see the Plea Agre ement unti l the day of the hear ing, and blames the district court for failing to discuss his potential sentenc e and the conseque nces of being deeme d a car eer offe n d er . At the evidentiar y hear ing, defe nse counsel ackn o wl edged that he did not g o over the Plea Ag ree ment with Fitzmorris until the day of the -8-Nos. 08-4140/09-3207

United States v. Fitzmorris hear ing. Def

ense counsel testified that although he could not rec all the details of his c onversation with Fitzmorris, it was his custom, when revie wing plea ag ree ments with clients, to g o over the likely sentenc ing rang e and discuss potential penalties. The dist rict court held t hat, i n light of the extensive neg otiations surrounding the Plea Ag ree ment, and g iven the court’s painstaking eff orts to

en s u re that Fitzmorris understood the conseque nces of pleading g uilty , which included g ivin g Fitzmorris time to consult with his attorney during the plea colloq u y , t h i s factor weig hed ag ainst g ranting Fitzmorris’s motion. Upon revie w, we do not find that the district court relied on clea rly err oneous finding s of fac t,

or improperly applied the law. Whil e it is pref era ble to provide plea ag ree ments to defe ndants a few day s ear ly , Fitzmorris had the opportunity to revie w his pleas befor e formally enter ing t h em. Fur ther, at t h e h ea ri n g itself, the district court g ave Fitzmorris additional time to consult with his attorney and g ener ally took specia l car e t o ensure that his pleas wer e competent, knowing and voluntary . The c ourt did so beca use it was re luctant to acc ept Fitzmorris’s pleas: Q. All rig ht. I just – Mr. Fitzmorris, if you want to know the truth about it, I ’m scar ed of a cce pting your plea , beca use I ’m worr ied you’re g oing to tr y to withdraw y our plea of g uilty later on based upon some rea son that hasn’t been disclosed here

. And I ’ve g ot to tell y ou, if y ou come ba ck her e and you try to do that, it’s probably g oing to f all on deaf

ear s, beca

use I ’m trying to g o throug h this plea as ca ref ully as Ican w ith y ou to make sure y ou understand it all. You unde rstand? A. Yes. Q. All rig ht. All right. (08-4140 R. 198, Orde r Deny ing Mot. Wit hdraw Plea 8-9 ( quoting 08-4140 R. 197, Chang e of Plea Hr’g Tr. 28-29).) As for Fitzmorris’s alleg ation that defe nse counsel misled h i m ab o u t his likely
sentenc ing rang e, the district court was in the best position to assess the witnesses’ cre dibilit y at the
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United States v. Fitzmorris evidentiar y hear ing, and i ts decision t o cre dit defe nse counsel ’s t es t i mony was not unrea sonable. The district court did not abuse its discretion in holding that thi s fa ct or weig hed ag ainst allowing Fitzmorris to withdraw his pleas. 5. F itzm orris’s N ature and Background Fi t z morris arg

ues that his display s of “shortsig htedness,” which include stealing a m et al fix ture from the courthouse on the day of his chang e-of -plea hear ing and his esca

pe and crime spree , should have convince d the district court that his pleas of g uilty wer e n ei t her deliberate nor thoughtf ul. However, t h i s i s s imply one fac tor to be considere d by the court. Moreove r, to the
extent that Fitzmorris sug g ests he lacke d the mental capa city to plead g uilty , the district court found him competent to stand trial in his esca pe and hostag e-taking case , based on evaluations perf ormed by two differ ent fore nsic psy cholog ists. The district court noted that Fitzmorris completed the tenth g rade and obtained a gene ral-e ducation dipl oma, an d observe d that he responded appropriately to questions during the plea c olloquy . The district cour t did not abuse its discretion in w eig hing this fac tor ag ainst Fitzmorris. 6. Experience with the Crim inal Ju stice Syste m The distric t co urt found that Fitzmorris’s leng thy rec ord, which included eleve n adult convictions in state court, rende red him intimately familiar with the working s of the criminal-justice sy stem. Neve rtheless, Fitzmorris submits that he had no experience in fede ral court befor e his drug and firear ms case s. This Court reje cted a simil ar argument i n Un i t ed Stat es v. Ford , 15 F. App’x 303, 309-10 (6th Cir. 2001), wher e the defe ndant’s prio r c r im in a l- ju stice experience consisted of two state-c ourt convictions. The district court did not abuse its discretion in weig hing this fac tor ag ainst -10-Nos. 08-4140/09-3207

United States v. Fitzmorris Fitzmorris. 7. P rej udi ce t o the G overnm ent The district court found that the only fac tor weig hing in Fitzmorris’s favor was that the Gover nment would not be prejudiced if he we re a llowed to withdraw his plea s. The district cour t based its finding on the fac t that the Gover nment did not offe r any evidenc e of prejudice

. Howeve r, “the g overnme nt is not requi re d t o es t ablish prejudice that would result from a plea withdrawa l, unless an d u n til the defe ndant advanc es and establishes a fair and just rea son for allowing the withdrawa l.” United States v. Goddard , 632 F.3d 255, 261 (6th Cir. 2011) ( quoting United States

v. Spence r , 836 F.2d 236, 240 (6th Cir. 1987)). Since F itz morris failed to e stablish such a rea son, this fac tor cannot be weig hed ag ainst the Gover nment. I t is simply immaterial to the analy sis. Id. None of the Bashara fac tors supports allowing Fitzmorris to withdraw his pleas; there fore , the district court did not abuse its discre tion in deny ing his motion. B. P roce dural Reasonab leness Fitzmorris arg

ues that, when sentenc i n g h i m i n both case s, the district court mistakenly presumed that it could not depar t or vary from the sentenc ing rang es provided by the Guidelines. On appea l, the proce dural soun d n ess of a criminal sentenc e is revie wed for abuse of discretion. 2

The Gover

nment argues that, instead of applyin g th e a b u s e - o f

- d is c r e ti on standard, this Court 2 should revie w Fitzmorris’s claim for plain err or beca use he failed t o ra i s e it at sentenc ing. See United States v. Penson , 526 F.3d 331, 337 (6th Cir. 2008) (“[P] lain-er ror revie w applies on appea l to those arguments not prese rved in the district court.” ) (citation omitted). Fitzmorris responds that he objected to his classification as a car eer offe nder at both sentenc ing hear ings, but does not explain how this challeng e addre ssed the district court’s alleg ed misap p r e h e n s io n o f th e Gu id e li n es’ advisory nature

. The Court need not resolve this issue beca use F itz morris’s cha lleng e fa ils under the more lenient abuse -of- discretion standa rd. -11-Nos. 08-4140/09-3207

United States v. Fitzmorris Gall v. United States , 552 U.S. 38, 51 (2007). T h e ad v isory nature of the sentenc ing Guidelines is bey ond dispute. See United States v. Booke r , 543 U.S. 220 (2005); United States v. Lanham , 617 F.3d 873, 889 (6th Cir. 2010). I t is also well establish ed t h at a district court commits proce dural err or by treating the Guidelines as mandatory

. Gall , 552 U.S. at 5 1

. Howeve r, on its own, the decision to sentenc e within the sug g ested Guidelines rang e is not evidenc e of err or, as long as the district court provides an adequate explanati o n for the chosen sentenc e. See id. ; United States v. Bolds , 511 F.3d 568, 580 (6th Cir. 2007) (“ The district cour

t must provide a clear e x planation of why it has . . . chosen the pa

rticular
sentenc e imposed, re g ardle ss of whethe r it is within or outsi de of the Guidelines.”)

. Fitzmorris analog izes this case to United States v. Gillis , 592 F.3d 696 (6t h C ir. 2009), in which a district court err oneously construed the car eer -off ender Guideline as mandatory

. I n Gillis , the district court’s mistake w as evide nt from the following statement, made at sentenc ing: the Court must note that the Six th Circuit has clea rly stated in t h e ca s e of United S t at es of Americ a v. J ames M. Funk,

. . . [477 F.3d 421 (6th Cir. 2007),] that a district c ourt can not r ejec t the leg islator’s policy behind car eer offe nder status. So whether or not I agree or disagree with the caree r offender provision, the Court must apply it if in fac t the evidenc e is such that a de fenda nt has sufficie nt convictions to be cla ssified as a c are er of fende r. Id. at 698 (empha sis added)

. On appea l, the Go v er n ment conce ded the district court’s err or; there fore , the only

question was whe ther the district c ourt’s mistake wa s harmless. The instant case differ s from Gillis in that Fitzmorris offe rs no evidenc e that the district court reg arde d the Guidelines as mandatory

. Both PSR s made clea r the Guidelines’ advisory nature , stating:

-12-Nos. 08-4140/09-3207

United States v. Fitzmorris [The] Supreme Court held in United States v. Booke r an d Un ited States v. Fa nfan (125 S. CT. 738), the Sentencing Guidelines are advisory

. The g uideline provisions contained in this section of the repor t are submitt ed to assist the Court in exercising its discretion under 18 U.S.C. §§3553(a) (1) throug h (a) (7). (2006 P SR ¶ 130; Presentenc e I nvestig ation Report for Escape Offe nse ¶ 139.) At the sentenc ing hear ing on Fitzmorris’s drug and firea rms convictions, the defe nse reque sted a downwar d depar ture

or a varia nce, noting that it was within the court’s discretion to impose a sentenc e outside the car eer offe nder rang e. And, at the second sentenc ing, the court expressly noted that the PSR ’s sug g ested
sentenc e was mere ly a rec ommendation, adding : “it’s entirely up to the Court what the sentenc e will be.” (09-3207 R. 100, Sent. Tr. 42

. ) Fi n al l y , cognizant of its duty to fashion a sentenc e that is “suff icient, but not g rea

ter t h an nece ssary ,” the district court revie wed eac h § 3553(a) fac tor individually b e f

o r e c o n c lu d ing that a term of imprisonment within the Guidelines would best achie ve the policies and pur

poses of sente ncing , as set for th in § 3553(a)( 2). I n both case s, the district court provided rea soned and thoroug h justifications for i t s sentenc es. See United S t a t es v. Blackwell , 459 F.3d 739, 773 (6th Cir. 2006). Be cause neither explanation hints that the district court considere d the car eer -off ender Guidelines to be mandatory , the cour t did not commit proce dural e rror in sentencingFitzmorris in either ca se. III. CONCLUSION The district court’s denial of Fitzmorris’s motion to withdraw his g uilty pleas in No. 08-4140 is AF F IRMED ; Fitzmorris’s sentence s in Nos. 08-4140 and 09-3207 a re a lso AF F IRMED

.

-13-