*

The Honorable William O. Bertelsman, United States District Judge for the Eastern District of

Kentucky, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0019p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ERNEST CATCHINGS,

Defendant-Appellant.

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Nos. 11-6303/6305

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 2:09-cr-20376-1—Jon Phipps McCalla, Chief District Judge.

Argued: December 6, 2012

Decided and Filed: January 15, 2013 

Before: MOORE and COOK, Circuit Judges; BERTELSMAN, District Judge.*

_________________

COUNSEL

ARGUED: Christian J. Grostic, KUSHNER & HAMED CO., L.P.A, Cleveland, Ohio,

for Appellant in Cases 11-6303 and 11-6305. Stephen P. Hall, UNITED STATES

ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee. ON BRIEF: Christian

J. Grostic, KUSHNER & HAMED CO., L.P.A, Cleveland, Ohio, for Appellant in Case

11-6305. Stephen P. Hall, UNITED STATES ATTORNEY’S OFFICE, Memphis,

Tennessee, for Appellee. Ernest Catchings, Memphis, Tennessee, pro se, in Case 11-

6303.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. Relevant conduct under United

States Sentencing Guidelines (U.S.S.G.) § 1B1.3 must be criminal conduct. If not, such

1
Nos. 11-6303/6305 United States v. Catchings Page 2

conduct is not relevant for the purpose of calculating a defendant’s Guidelines range.

In this appeal, we consider whether the district court included non-criminal conduct as

relevant conduct when it sentenced defendant-appellant, Ernest Catchings.

Catchings pleaded guilty to one count of identity theft. In essence, Catchings

fraudulently opened personal credit-card accounts using his former clients’ personal

information without their knowledge. When calculating the amount of loss pursuant to

U.S.S.G. § 2B1.1(b)(1), district courts include losses stemming from relevant conduct

under § 1B1.3. In this case, the district court included in its calculation losses stemming

from credit cards that were in the name of U.S. Investments & Construction, a business

that Catchings started with a friend. Catchings contends that the U.S. Investments

& Construction credit cards were not obtained or used in violation of criminal law.

Therefore, according to Catchings, the district court erred in including those losses when

calculating his Guidelines range. We agree.

In addition to the arguments regarding his sentence, Catchings claims that his

guilty plea was not entered knowingly or voluntarily and that the district court erred in

denying his motion to withdraw his guilty plea. We disagree. Therefore, we AFFIRM

the judgment of conviction of the district court and its denial of Catchings’s motion to

withdraw his guilty plea; however, we VACATE his sentence and REMAND the case

for resentencing in accordance with this opinion.

I. BACKGROUND

On September 23, 2009, a grand jury returned an indictment charging Catchings

with using and attempting to use unauthorized access devices with intent to defraud, in

violation of 18 U.S.C. § 1029(a)(2) and (b)(1). R. 1 (Indict. at 1–2) (Page ID #1–2). On

November 4, 2010, another grand jury returned a superseding indictment that added a

charge of knowingly possessing and using without lawful authority a means of

identification of another person with the intent to commit forgery and fraudulent use of

credit cards over $500, in violation of 18 U.S.C. § 1028(a)(7). R. 41 (Super. Indict. at

3) (Page ID #51). On November 15, 2010, Catchings pleaded guilty to the added charge
Nos. 11-6303/6305 United States v. Catchings Page 3

1

Catchings dated the motion January 18, 2011.

in the superseding indictment, and the government agreed to dismiss the first charge

pursuant to a plea agreement. R. 114 (Change of Plea Hr’g Tr. at 32) (Page ID #903);

R. 51 (Plea Agreement at 1–2) (Page ID #63–64).

After pleading guilty, Catchings filed a motion to dismiss counsel and another

motion to have new counsel appointed. R. 53 (Mot. to Dismiss Counsel) (Page ID

#69–71); R. 52 (Mot. for Appt. of Counsel) (Page ID #66–68). Catchings’s counsel also

filed a motion to withdraw at Catchings’s request. R. 54 (Mot. to Withdraw as Counsel)

(Page ID #72–74). Catchings then decided that he wanted to proceed pro se with his

counsel staying on as “elbow counsel.” R. 110 (Mot. Hr’g at 6) (Page ID #636). The

district court warned Catchings of the dangers of proceeding pro se, but ultimately

allowed him to do so. Id. at 6–9 (Page ID #636–639).

On February 8, 2011, two days prior to the first scheduled date of his sentencing

hearing, Catchings filed a motion to withdraw his guilty plea.1 In that motion, Catchings

asserted that his guilty plea was “unfairly obtained or given through ignorance, fear, or

inadvertence.” R. 69 (Mot. to Withdraw Plea at 1) (Page ID #105). Catchings also

claimed that he was induced by his attorney to plead guilty “by the promise that

prosecution would not oppose a bond hearing [a]nd [the] government would recommend

to dismiss count 1 of the indictment.” Id. He then filed a “Motion to Dismiss Elbow

Counsel” and an addendum to his motion to withdraw his guilty plea that discussed his

dissatisfaction with his counsel. R. 72 (Mot. to Dismiss Elbow Counsel) (Page ID

#110–12); R. 73 (Addendum to Plea Withdrawal) (Page ID #113–17).

Catchings’s first scheduled date for sentencing was pushed back to March 11,

2011. At that hearing, the district court denied Catchings’s motion to withdraw his

guilty plea because it was “untimely, and there’s not been any indication that [his plea]

was not knowingly and voluntarily entered.” R. 111 (3/11/2011 Sentencing Hr’g Tr. at

6) (Page ID #655). Catchings decided at that time to reinstate his counsel to represent

him fully, which the court accepted. Id. at 24, 27–28 (Page ID #673, 676–77). The court
Nos. 11-6303/6305 United States v. Catchings Page 4

2

Evidence of four specific charges to these cards was presented at sentencing: a payment of a cell

phone bill, a purchase at Walgreens, and two online banking advances. R. 75-6 (Loss Statements at 80)

(Page ID #411).

also granted Catchings’s request to push back the date of his sentencing hearing so that

his newly reinstated counsel could prepare. Id. at 24–27 (Page ID #673–76).

According to the Presentence Investigation Report (“PSR”), Catchings ran a

business helping people obtain mortgages and later used his former clients’ information

fraudulently to obtain credit cards and to open utility accounts in their names. PSR

¶¶ 9–30 (listing the accounts, whose name they were in, and the losses sustained). The

PSR details the monetary losses that were caused as a result of Catchings fraudulently

opening cards and accounts. Included in those losses is $38,197.81 to Bank of America

from cards opened in the name of “U.S. Investments & Construction.”2 Id. at ¶ 19.

Catchings objected to the PSR’s inclusion of the losses from the U.S. Investments &

Construction credit cards because they were legitimate credit cards used for legitimate

business transactions. R. 83 (Am. Def.’s Objections to Sentencing Factors at 2) (Page

ID #456). U.S. Investments & Construction was a real-estate business started by

Catchings and a former friend and client, Ronald McCoy. PSR ¶ 20. With the inclusion

of the U.S. Investments & Construction credit cards, the PSR states that Catchings

caused a loss that was greater than $70,000 but less than $120,000, resulting in a eightlevel increase to Catchings’s base offense level pursuant to U.S.S.G. § 2B1.1(b)(1)(E).

PSR at ¶ 36.

At Catchings’s final sentencing hearing on September 29, 2011, the district court

heard testimony from Catchings’s former business partner, McCoy. On direct

examination, McCoy testified that he and Catchings obtained credits cards for the

purpose of furthering their business, U.S. Investments & Construction, but that McCoy

did not intend or authorize the cards to be used for any personal expenditures. R. 112

(9/29/2011 Sentencing Hr’g Tr. at 89–91) (Page ID #772–74). McCoy further testified

that he did not authorize cash withdrawals to be made from the cards and that he had no

notice of the charges that were made on the credit cards, for which he would not have

given permission. Id. at 91–92 (Page ID #774–75). McCoy also stated that, when he
Nos. 11-6303/6305 United States v. Catchings Page 5

visited a property that he and Catchings purchased, people were upset with him because

they were told that McCoy was not paying the mortgage and that McCoy was using

drugs. Id. at 93 (Page ID #776). McCoy explained that this was simply untrue and that

he gave money to Catchings to pay the mortgage. Id.

On cross examination, McCoy said that he relied on Catchings to “take care of

everything” and that it was possible that McCoy signed papers to obtain the credit cards.

Id. at 97–98 (Page ID #780–81). McCoy testified that he remembered a credit card, but

he and Catchings never used it. Id. at 100 (Page ID #783). McCoy also said that both

he and Catchings were responsible for purchasing supplies to make repairs on homes that

they purchased and that Catchings was authorized to sign on behalf of U.S. Investments

& Construction as president of the company. Id. at 99–101 (Page ID #782–84).

On redirect examination, McCoy said that it was not his intention to have the

credit cards used at all; rather, McCoy testified that “to make the business strong, we

needed the credit.” Id. at 102 (Page ID #785). He then confirmed his earlier testimony

that he had no knowledge of the purchases or cash withdrawals and that he did not

authorize those transactions. Id. at 102–03 (Page ID #785–86).

The district court found:

The testimony of Mr. McCoy was . . . persuasive and consistent with the

government’s theory. Mr. Catchings, it appears, was engaging in the

activity of taking either information from good friends or people whom

he could clearly overreach in the process of obtaining credit . . . . In

2007, [Catchings and McCoy] went into business. It was clear, however,

they did not go into business for the purpose of providing Mr. Catchings

with a way to pay his personal obligations. . . . Mr. McCoy was trusting

and overly trusting in the case, but hindsight is 20/20. Our society

doesn’t require a person to have unusual suspicion of their friends, or

even people they don’t know well. There’s generally a presumption that

people will not engage in illegal conduct. . . . [McCoy] did not intend to

obtain personal credit cards, and he testified to that effect. And while we

might speculate that that might have occurred, we don’t know. The

witness clearly didn’t intend to do that, and there’s really no proof that

he, in fact, did in any way intend to obtain credit cards for the defendant.

. . . So really as to . . . Mr. McCoy, [his] testimony clearly supports the

government’s contention.
Nos. 11-6303/6305 United States v. Catchings Page 6

3

In his pro se brief, Catchings appears to raise two additional issues that can be disposed of

summarily. First, Catchings argues that he received ineffective assistance of counsel at his change of plea

hearing and at his sentencing hearing. 11-6303 Appellant Br. at 13. We decline to entertain this claim

because it is not ripe for review with an undeveloped record. See United States v. Franco, 484 F.3d 347,

355 (6th Cir. 2007). Furthermore, this court has a general rule to refrain from ruling on ineffectiveassistance-of-counsel claims on direct appeal because they are more properly raised in a post-conviction

proceeding under 28 U.S.C. § 2255. Id. Second, Catchings asserts that the district court lacked subjectmatter jurisdiction because the search warrants were invalid. 11-6303 Appellant Br. at 17–18. The

connection between the validity of the search warrants and jurisdiction is unclear, and this appears to be

an attempt to couch an attack on the validity of the search warrants by framing it as a jurisdictional issue.

Regardless, the district court had jurisdiction under 18 U.S.C. § 3231, and Catchings waived his challenge

to the search warrants when he pleaded guilty. See Tollett v. Henderson, 411 U.S. 258, 267 (1973).

R. 112 (9/29/2011 Sentencing Hr’g Tr. at 131–33) (Page ID #814–16).

The district court then adopted the finding in the PSR that the loss amount was

greater than $70,000 but less than $120,000, stating that “the court clearly finds—or

finds that the evidence clearly—frankly overwhelming supports the conclusion that the

[loss] amount is in excess of $70,000.” Id. at 136, 130, 148 (Page ID #819, 813, 831).

After other adjustments, Catchings’s total offense level became twenty. Combined with

his criminal history category of III, Catchings’s Guidelines range became forty-one to

fifty-one months of imprisonment. The district court imposed a sentence of fifty-one

months of imprisonment and ordered restitution in the amount of $77,271.70. R. 94

(Judgment) (Page ID #493–500); R. 112 (9/29/2011 Sentencing Hr’g Tr. at 169–72)

(Page ID #852–55).

Catchings filed two timely notices of appeal that were docketed separately. In

No. 11-6303, Catchings filed a pro se brief and argues that his guilty plea was not

entered knowingly or voluntarily. He also asserts that the district court erred in denying

his motion to withdraw his guilty plea. In No. 11-6305, in which Catchings is

represented by counsel, he claims that the district court erred in its calculation of loss

amount under the Guidelines. These appeals were consolidated, and Catchings’s counsel

argued both cases at oral argument. We address each of Catchings’s arguments in turn.3

II. KNOWING, VOLUNTARY, AND INTELLIGENT PLEA

Catchings argues that his plea was not entered knowingly or voluntarily because

his attorney misled him into signing a plea agreement by assuring Catchings that he

would receive probation. 11-6303 Appellant Br. at 5–6. Catchings also argues that his
Nos. 11-6303/6305 United States v. Catchings Page 7

plea was not knowing or voluntary because the district court failed to comply with

Federal Rule of Criminal Procedure 11 (“Rule 11”) when it accepted his guilty plea. Id.

at 9–12. Catchings’s arguments are not persuasive because there is nothing in the record

that would lead us to believe that Catchings’s plea was not entered knowingly,

voluntarily, or intelligently.

We review de novo whether a defendant’s plea was entered knowingly,

voluntarily, and intelligently; however, “[t]he underlying factual bases relied upon by

the district court are reviewed for clear error.” United States v. Dixon, 479 F.3d 431,

434 (6th Cir. 2007). “When a defendant fails to object contemporaneously to the district

court’s alleged failure to comply with the requirements of Rule 11, we review for ‘plain

error.’” United States v. Webb, 403 F.3d 373, 378 (6th Cir. 2005) (quoting United States

v. Vonn, 535 U.S. 55, 59 (2002)). Under this review, “the burden is on the defendant to

show that but for the error, he would not have pleaded guilty.” United States v. Martin,

668 F.3d 787, 791 (6th Cir. 2012).

“A guilty plea is valid if it is entered knowingly, voluntarily, and intelligently by

the defendant.” Dixon, 479 F.3d at 434. “Rule 11 is meant to ensure that the district

court is satisfied that the defendant’s plea is knowing, voluntary, and intelligent.” Webb,

403 F.3d at 378. Under Rule 11, the district court verifies that the defendant is pleading

voluntarily and “that the defendant understands his or her applicable constitutional

rights, the nature of the crime charged, the consequences of the guilty plea, and the

factual basis for concluding that the defendant committed the crime charged.” Id. at

378–79.

At Catchings’s sentencing hearing, the district court found no indication in the

record that Catchings’s plea was not entered knowingly or voluntarily. R. 111

(3/11/2011 Sentencing Hr’g Tr. at 6) (Page ID #655). Reviewing the record ourselves,

we agree. There is simply nothing in the record that would lead us to conclude that

Catchings’s plea was anything but knowing, voluntary, and intelligent. See R. 114

(Change of Plea Hr’g at 4–32) (Page ID #875–903). Catchings’s assertion that he

pleaded guilty based on the assurances of his attorney that he would receive probation
Nos. 11-6303/6305 United States v. Catchings Page 8

finds no support in the record. At his change-of-plea hearing, Catchings was informed

that the count to which he was pleading guilty carried a maximum penalty of fifteen

years of imprisonment. Id. at 20 (Page ID #891). His plea agreement states that the

government would “recommend that [Catchings] be sentenced to no more than the

midrange of the applicable advisory sentencing guideline range as determined by the

Court.” R. 51 (Plea Agreement at 2) (Page ID #64). Catchings was certainly aware that

the charge to which he was pleading guilty carried a potential term of imprisonment, and

he has not pointed to any other facts that would lead us to conclude that his

understanding was any different.

Catchings’s arguments regarding the district court’s alleged failure to comply

with Federal Rule of Criminal Procedure 11 are similarly unfounded and unavailing. In

his pro se brief, Catchings quotes various portions of Rule 11, but he fails to point to

anything in the record that shows that the district court did not comply with Rule 11. In

fact, the record shows that district court followed the requirements of Rule 11 quite

literally. See R. 114 (Change of Plea Hr’g at 4–32) (Page ID# 875–903). For example,

the district court determined that Catchings was competent to enter a guilty plea, id. at

4–8, 32 (Page ID #875–79, 903), and Catchings stated that he was pleading guilty of his

own free will because he was, in fact, guilty, id. at 19–20 (Page ID #890–91).

Catchings’s claims are simply without merit. Therefore, we hold that Catchings’s guilty

plea was entered knowingly, voluntarily, and intelligently, and that the district court did

not commit plain error in following the requirements of Rule 11.

III. PLEA WITHDRAWAL

In his motion to withdraw his guilty plea, Catchings claimed that his plea was

“unfairly obtained or given through ignorance, fear, or inadvertence.” R. 69 (Mot. to

Withdraw Plea at 1) (Page ID #105). Although far from clear, Catchings seems to have

argued that his counsel was ineffective by inducing Catchings to plead guilty with the

promise that his release on bond would not be opposed and by failing to explain the

consequences of a guilty plea. Id.; R. 73 (Addendum to Plea Withdrawal) (Page ID

#113–17). The district court denied Catchings’s motion to withdraw his guilty plea,
Nos. 11-6303/6305 United States v. Catchings Page 9

4

The district court also noted that this motion appears to be filed as part of Catchings’s tactic of

contesting everything to delay his case. R. 111 (9/29/2011 Sentencing Hr’g Tr. at 6) (Page ID #655).

Although criminal defendants are certainly entitled to make any arguments they wish, we acknowledge

that the district court did a commendable job of managing Catchings’s various pro se motions and

arguments.

finding that it was untimely and without merit.4 R. 111 (3/11/2011 Sentencing Hr’g Tr.

at 6) (Page ID #655). Id. On appeal, Catchings argues that the district court erred in

denying his motion by failing comply with Rule 11 and by not considering his allegation

that counsel was ineffective before denying the motion. These arguments lack support

in the record; therefore, we affirm the district court’s denial of Catchings’s motion to

withdraw his guilty plea.

We review for abuse of discretion the district court’s denial of a motion to

withdraw a guilty plea. United States v. Wynn, 663 F.3d 847, 849 (6th Cir. 2011). “A

district court abuses its discretion where it relies on clearly erroneous findings of fact,

or when it improperly applies the law or uses an erroneous legal standard.” United

States v. Haygood, 549 F.3d 1049, 1052 (6th Cir. 2008) (quotation marks and citation

omitted).

Under Rule 11(d), a defendant may withdraw a guilty plea if “the defendant

can show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P.

11(d)(2)(B). In making the determination of whether the defendant has shown a “fair

and just reason,” we consider the totality of the circumstances, including the factors set

forth in United States v. Bashara:

(1) the amount of time that elapsed between the plea and the motion to

withdraw it; (2) the presence (or absence) of a valid reason for the failure

to move for withdrawal earlier in the proceedings; (3) whether the

defendant has asserted or maintained his innocence; (4) the

circumstances underlying the entry of the guilty plea; (5) the defendant’s

nature and background; (6) the degree to which the defendant has had

prior experience with the criminal justice system; and (7) potential

prejudice to the government if the motion to withdraw is granted.

27 F.3d 1174, 1181 (6th Cir. 1994). These factors “are a general, non-exclusive list and

no one factor is controlling.” United States v. Bazzi, 94 F.3d 1025, 1027 (6th Cir. 1996)
Nos. 11-6303/6305 United States v. Catchings Page 10

(per curiam). Our examination of these factors in this case buttresses our conclusion that

the district court did not abuse its discretion in denying Catchings’s motion to withdraw

his guilty plea because Catchings did not offer a fair and just reason that finds support

in the record.

1. Length of delay. Catchings waited over two months after pleading guilty to

file his motion to withdraw his guilty plea. We have consistently determined that shorter

delays weigh against withdrawal; therefore, this factor weighs against Catchings’s

attempt to withdraw his plea. See United States v. Benton, 639 F.3d 723, 727 (6th Cir.

2011) (collecting cases regarding the amount of delay and noting that “[t]his Court has

declined to allow plea withdrawal when intervening time periods were as brief as one

month”); see also United States v. Martin, 668 F.3d 787, 795 (6th Cir. 2012) (collecting

cases regarding the amount of delay).

2. Validity of Catchings’s reason for failing to move for withdrawal earlier.

Catchings claims that he asked his attorney to file his motion to withdraw his guilty plea

five days after he pleaded guilty. 11-6303 Appellant Br. at 15–16. Catchings has not

pointed to any evidence in the record that supports this contention. We note, however,

that Catchings did date his motion for plea withdrawal January 18, 2011, which was only

five days after he was permitted to proceed pro se. Although this is some indication that

Catchings himself might not have caused the delay, we are not convinced that he was

unable to express his intention to withdraw his guilty plea prior to being permitted to

proceed pro se.

At the hearing on his motion to dismiss his counsel, Catchings alluded to the fact

that he would not have pleaded guilty if he had known that his relevant conduct could

be considered in determining his sentence. R. 109 (Mot. Hr’g at 21) (Page ID #610).

Catchings did not, however, assert that he instructed his counsel to file a motion to

withdraw his guilty plea. Instead, he voiced his dissatisfaction with his attorney’s failure

to request a bond hearing. Id. at 6–11 (Page ID #595–600). We also note that Catchings

did not present his reason for delay in his original motion to withdraw his plea or in the

addendum to that motion, which he filed later. Without any evidence supporting his
Nos. 11-6303/6305 United States v. Catchings Page 11

5

To the extent that Catchings argues that he would not have pleaded guilty had he known that

relevant conduct would have been included in the calculation of his Guidelines range, we are not persuaded

that this is true. There is ample evidence in the record that Catchings was well aware of the fact that

relevant conduct could be included in calculating his Guidelines range. E.g., R. 51 (Plea Agreement at 2)

(Page ID #64) (“All parties agree that the advisory Sentencing Guideline range and any restitution amount

will be computed based upon the relevant conduct findings by the Court at sentencing.”). In fact,

Catchings asked the district court about the effect the relevant conduct would have on his sentence prior

to pleading guilty. R. 114 (Change of Plea Hr’g at 10–13) (Page ID #881–84).

contention that he asked his attorney to file a motion to withdraw his guilty plea,

Catchings has failed to present a valid excuse for his delay in filing his motion to

withdraw his plea.

3. Catchings’s innocence. The third factor also weighs against Catchings

because he pleaded guilty, affirming that he was, in fact, guilty, and has not asserted that

he is innocent. R. 114 (Change of Plea Hr’g Tr. at 32) (Page ID #903); R. 51

(Plea Agreement at 1–2) (Page ID #63–64); see 11-6303 Appellant Br. at 9

(“Now withdrawing [my] plea doesn’t necessarily mean that I am innocent . . . .”).

4. Circumstances underlying the entry of Catchings’s guilty plea. In considering

the circumstances underlying the entry of the guilty plea, we note, as discussed in Part

II of this opinion, that the district court complied with Rule 11 and that Catchings

knowingly, voluntarily, and intelligently pleaded guilty with a full understanding of his

rights and the consequences of his plea.5 See R. 114 (Change of Plea Hr’g at 4–32)

(Page ID #875–903). Therefore, the fourth factor supports the denial of Catchings’s

motion to withdraw his guilty plea.

5. Catchings’s nature and background. Catchings attended college for several

years, and he reports having various professional licenses. He has not argued that he did

not understand the proceedings below, and his background indicates that was capable

of understanding the consequences of his guilty plea. Therefore, this factor weighs

against withdrawal.

6. Catchings’s prior experience with the criminal-justice system. Likewise, the

sixth factor weighs against Catchings because he has fairly extensive prior experience

with the criminal-justice system, as reflected in his criminal history category of III.
Nos. 11-6303/6305 United States v. Catchings Page 12

7. Potential prejudice to the government if the motion to withdraw is granted.

Finally, we need not consider this factor because Catchings has not put forth a fair and

just reason for allowing withdrawal of his plea. United States v. Spencer, 836 F.2d 236,

240 (6th Cir. 1987) (“[T]he government is not required to establish prejudice that would

result from a plea withdrawal, unless and until the defendant advances and establishes

a fair and just reason for allowing the withdrawal . . . .”).

In sum, our analysis of these factors indicates that Catchings’s motion to

withdraw his guilty plea was properly denied. Catchings’s argument that the district

court should have considered his allegation that defense counsel was ineffective before

denying Catchings’s motion to withdraw does not fit neatly into one of the seven factors

analyzed above, but it also fails. The record shows that Catchings’s last accusation that

his “elbow counsel” was not “competent” was on February 12, 2011. R. 72 (Mot. to

Dismiss Elbow Counsel) (Page ID #110–12). On March 23, 2011, Catchings made an

oral motion to reinstate his counsel to represent him fully. Therefore, the district court

had no reason to consider Catchings’s argument that his counsel was ineffective given

that Catchings reinstated his counsel after making that claim. R. 111 (3/11/2011

Sentencing Hr’g Tr. at 24, 27–28) (Page ID #673, 676–77). In considering the totality

of the circumstances, we hold that the district court did not abuse its discretion in

denying Catchings’s motion to withdraw his guilty plea.

IV. GUIDELINES RANGE CALCULATION

Catchings argues that the district court improperly calculated his Guidelines

range by including non-criminal conduct as relevant conduct for the purpose of

determining the amount of loss under U.S.S.G. § 2B1.1(b)(1). Catchings advances two

arguments in support. First, Catchings asserts that “[t]he evidence presented at the

sentencing hearing was insufficient to establish that [he] committed any criminal conduct

relating to Mr. McCoy and U.S. Investments & Construction.” 11-6305 Appellant Br.

at 10. Second, he claims that the district court’s factual findings regarding the U.S.

Investments & Construction credit cards were clearly erroneous because they are
Nos. 11-6303/6305 United States v. Catchings Page 13

6

If the district court did not include the U.S. Investment & Construction credit cards, the total loss

would have been greater than $30,000 but less than $70,000, resulting in a lower total offense level of

eighteen and a lower Guidelines range of thirty-three to forty-one months. 11-6305 Appellant Br. at 14;

see U.S.S.G. § 2B1.1(b)(1); see also U.S.S.G. Sentencing Table.

unsupported by the evidence presented at sentencing. We agree with Catchings on both

points.

We review the “district court’s findings of fact at sentencing for clear error and

its legal conclusions regarding the Sentencing Guidelines de novo.” United States v.

Maken, 510 F.3d 654, 656–57 (6th Cir. 2007). However, “[b]ecause the district court’s

determination that the activity in this case constitutes ‘relevant conduct’ under the

Sentencing Guidelines involves the application of law to fact, we review the district

court’s determination de novo.” United States v. Shafer, 199 F.3d 826, 830 (6th Cir.

1999). “Where the district court materially erred by failing to calculate the appropriate

guideline range, we are required to remand for re-sentencing.” United States v. Damra,

621 F.3d 474, 508 (6th Cir. 2010) (quotation marks and citation omitted).

In calculating the Guidelines loss under U.S.S.G. § 2B1.1(b)(1), district courts

include losses sustained from relevant conduct under U.S.S.G. § 1B1.3. Although

“relevant conduct is not limited to conduct for which the defendant has been convicted,”

the conduct must “amount[] to an offense for which a criminal defendant could

potentially be incarcerated.” Maken, 510 F.3d at 658–59; Shafer, 199 F.3d at 831. In

short, relevant conduct under § 1B1.3 must be criminal conduct. See United States v.

Schaefer, 291 F.3d 932, 940 (7th Cir. 2002) (noting that its holding “that relevant

conduct under § 1B1.3 of the Guidelines is limited to criminal conduct” is “amply

supported” by case law in the Third, Fifth, and Eighth Circuits).

Catchings argues that the district court erred by including his conduct related to

the U.S. Investments & Construction credit cards in its calculation of the Guidelines loss

amount because there was insufficient evidence to establish that said conduct was

criminal.6

 In essence, Catchings points to evidence that showed that, unlike the other

victims who had their personal information stolen and their signatures forged on credit-
Nos. 11-6303/6305 United States v. Catchings Page 14

7

The government points to the district court’s use of “illegal conduct” as being indicative of a

recognition that Catchings’s conduct violated criminal law. 11-6305 Appellee Br. at 25–26. Illegal

conduct is not necessarily the type “that could lead to a criminal conviction resulting in prison time,” and

we decline to equate “illegal conduct” with “criminal conduct” in this case. Shafer, 199 F.3d at 830–31.

card applications, McCoy authorized Catchings to use his information to obtain credit

cards for their business, U.S. Investments & Construction.

The government contends that Catchings’s conduct relating to the U.S.

Investments & Construction cards “closely mirrors” his conduct in obtaining the other

credit cards because:

It involved the same pattern of fraud or modus operandi. The defendant

used victims’ information, much of which was obtained during his prior

business relationships with the victims, to establish or obtain

unauthorized access to credit accounts in their names. The conduct was

done for the same purpose. In each case, the defendant would steal

money, goods and services from banks and merchants by using these

credit[] accounts for his own benefit—all at the expense of the

unknowing account holders.

11-6305 Appellee Br. at 22. The government acknowledges, however, that McCoy may

have been aware of the existence of the cards. Id. at 24. Nonetheless, the government

concludes that Catchings’s conduct related to the U.S. Investments & Construction cards

was criminal by citing numerous criminal statutes without explaining how the statutes

apply to the contested conduct.7

 Id. at 25. This lack of analysis highlights the district

court’s error.

Contrary to the government’s assertion that Catchings’s conduct related to the

U.S. Investments & Construction cards “involved the same pattern of fraud or modus

operandi,” we believe that this conduct is distinguishable from his use of other cards.

Catchings did not fraudulently obtain the company credit cards, as he did with the other

cards; instead, McCoy testified that they obtained credit cards for their business:

Q: Were there any credit cards that were obtained for the purposes of

furthering the business?

A: Yes.
Nos. 11-6303/6305 United States v. Catchings Page 15

8

The district court did not state what criminal statute Catchings violated with regard to his use

of the U.S. Investments & Construction cards. We find this omission problematic in this case for two

reasons. First, Catchings contested whether his conduct related to these cards was criminal. Therefore,

the district court was aware of the need to make an explicit finding of criminality with regard to that

conduct. Second, although relevant conduct can include uncharged conduct, the fact that the U.S.

Investments & Construction cards were not listed in any charge against Catchings makes the need for an

express statement of what statute this conduct violated even greater. In comparison, the other cards that

were included in the relevant-conduct section of the PSR were listed in the indictments.

9

This is not to say that Catchings’s conduct could not have been criminal. Rather, we make this

observation in the context of the evidence presented at his sentencing hearing.

R. 112 (9/29/2011 Sentencing Hr’g Tr. at 89–90) (Page ID #772–73). Although there

was evidence that McCoy did not authorize Catchings to use the credit cards, the

government has not proved—and the district court failed to explain—how Catchings’s

use of the cards constituted criminal conduct.8 The evidence showed that Catchings was

U.S. Investments & Construction’s president, McCoy relied on Catchings to “take care

of everything,” and Catchings was authorized to sign on behalf of the business. R. 112

(9/29/2011 Sentencing Hr’g Tr. at 97, 100–01) (Page ID #780, 783–84). It is unclear

how Catchings, the person who was responsible for running the company and who could

sign on behalf of the company, violated criminal statutes by using the company’s credit

cards (even without authorization from McCoy).9

 There was insufficient evidence to

support the conclusion that Catchings engaged in criminal conduct in obtaining or using

the U.S. Investments & Construction cards. Therefore, the district court erred in

including those cards as relevant conduct in calculating the amount of loss.

Catchings also argues that the district court’s finding that the cards were

“personal” is clearly erroneous. Catchings observes that the cards were not in McCoy’s

name, unlike the other cards included as relevant conduct that were in individuals’

names. 11-6305 Appellant Br. at 12–13. At the sentencing hearing, McCoy testified

that credit cards were obtained for the purpose of furthering their business, U.S.

Investments & Construction, and that the cards “had the business name on them.” R.

112 (9/29/2011 Sentencing Hr’g Tr. at 89–90) (Page ID #772–73). Catchings argues that

in addition to the fact that the cards were in the business’s name, there was no evidence

presented at sentencing that the cards were used for personal purchases. We agree with

Catchings. The evidence was ambiguous as to the nature of the charges and, as a result,
Nos. 11-6303/6305 United States v. Catchings Page 16

is not a basis for concluding that the U.S. Investments & Construction credit cards were

for “personal use.” Therefore, the district court did make a clearly erroneous finding of

fact that Catchings obtained the cards for personal use.

Although we certainly agree with the district court that Catchings took advantage

of an overly trusting friend, we cannot say, based on the evidence presented at

sentencing, that Catchings’s conduct with respect to the U.S. Investments &

Construction credit cards was criminal. The evidence showed that McCoy authorized

Catchings to open the accounts and that the cards were in the name of their business,

U.S. Investments & Construction. The evidence was insufficient to establish that

Catchings’s conduct was criminal, and the district court erred by including these cards

in its loss calculation under U.S.S.G. § 1B1.3. Therefore, we vacate Catchings’s

sentence and remand for resentencing.

V. CONCLUSION

As set forth in this opinion, we AFFIRM the judgment of conviction of the

district court and its denial of Catchings’s motion to withdraw his guilty plea; however,

we VACATE Catchings’s sentence and REMAND the case for resentencing.