NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0232n.06 No. 10-2526 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,
v. ANTON I O L YNN F L UKER, J R., Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF MI CHI GAN

BEF ORE: KETHL EDGE, WHI TE, and STRANCH, Circuit J udg es.

PER CURI AM. Anto n io L y nn Fluker , J r., appea ls the district court’s judgme nt of conviction and sente nce. I n April 201 0 , p u rs u ant to a plea ag ree ment, Fluker pleade d g uilty to identity theft in violation of 18 U.S.C. § 1028(a) (7), (b)( 1)(d)

. Whil e Fluker was out on bond pending sentenc ing,

a pretria l service s office r filed a petition for a bond-re view hear ing in the district court alleg ing that Fluker had v i o l ated the conditions of his rele ase (R.17). The district court schedule d a hear ing. Fluker failed to a

ppear , and he was arre sted. He was rele ased, however , afte r a forg ed letter from

a fede ral mag istrate judge was faxed to the jail. Fluker was ag ain arr ested, and h e all eg edly acknow ledg ed that he w as re sponsible for the f org ed letter

that was sent to the jail (R.30 at 3- 4). I n October 2 0 1 0 , eig ht day s befor e his sentenc ing hear ing, Fluker moved to withdraw his g uilty plea (R.28). He arg ued that the am o u n t of loss resulting from his crimes was less than $70,000, not more than $200,000 as stipulated in the plea ag ree ment, and that he enter ed his g uiltyNo. 10-2526

United States v. Fluke r plea only beca

use it allowed him to rec eive a three -leve l reduc tion to his total offe nse level for

acc eptanc e of responsibility

. Be cause the g overnme nt was no l o n ger willing to rec ommend the three -leve l reduc tion in light of Fl u k er ’s p ost-plea activities, Fluker soug ht to withdraw the plea. The district court denied Fluker ’s motion. I t calc ulated his g uidelines rang e of imprisonment to be 92 to 115 months and sentence d him to 105 mont hs in prison (R.44 at 71). On appea l, Fluker arg ues that the district court err ed by concluding that there was a sufficie nt fac tual basis fo r h i s gu i lty plea beca use the court did not establish that he used a means of identification that he knew belong ed to another person as require d by § 1028(a) (7). He also arg ues that the district court err ed by deny ing his motion to withdraw his g uilty plea. Be cause Fluker failed to arg ue in the district court that there was not a sufficie nt fac tual basis for his g uilty plea (R.43 at 21), we revie w the claim for plain err or. See United States v. McCreary -Redd , 475 F.3d 718, 721 (6th Cir. 2007). To establish plain err or, F luker must show that an obvious or clea r error affe cted both his substantial rig hts and the fairne ss, integ rity , or public reputa tion of the judicial proce eding s. Id. The indictment alleg ed that Fluker committed identity theft by using a cre dit car d issued in the name of another person, Volker Poenisch, to perpe trate bank fra ud (R.3 at 2). L ikewise, the plea ag ree ment stated that the fa ctual basis for Fluker ’s crime was that he perpe trated bank fr aud using

a cre dit car d that he obtained using Poenisch’s name and other persona l identi fy i n g i nformation (R.16 at 2-3). At the plea hear ing, the dist ri ct court revie wed with Fluker those portions of the indictment and plea ag ree ment, and he ag ree d that the char g es wer e true and acc urate (R.43 at 6, 12- 13). Fluker then testified that he “g ot online and applied for a cre dit car d” in Poenisch’s name “[t] o

-2-No. 10-2526

United States v. Fluke r try to f raud him or whateve r” and “[t] o try to ge t goods a

nd stuff fr om him, from the cre dit card.” When the district court asked whether Fluker “used this individual’s identity ,” he responde d in the aff irmative ( id. at 19-20). The district court did not plainly err in d et er m i n i n g that there was a sufficie nt fac tual basis for Fluker ’s g uilty plea beca use the court’s colloquy with Fluker established t h at h e u s ed a means of i dentifica tion that he knew belong ed to another person as require d by the statute. See 18 U.S.C. § 1028(a) (7); McCreary -Redd, 475 F.3d at 722 (noting the var ious way s in which a distri ct court may satisfy the require ments of Fe dera l Rule of Criminal Procedur e 11, including “ensur [i n g] t h at the defe ndant’s statement includes conduct—a nd mental state if

nece ssary ” that satisfies the e lements of the of fense ). Fluker also arg ues that the district court err ed by ref using to allow him to withdraw his g uilty plea beca use he moved to withdraw the plea befor e the district court acc epted it and he demonstrated

a fair and just rea son for reque sting the withdrawa l. A defe ndant may waive any rig ht by means of

a plea ag ree ment, including his rig ht to appeal t h e denial of a subsequent motion to withdraw his g uilty plea. United States v. Toth , 668 F.3d 374, 377-79 (6th Cir. 2012). A waiver of appea l rig hts may be challeng ed on the g rounds that it was not knowing or voluntary , was not taken in compliance with Fe d. R. Crim. P. 11, or was the product of ineffe ctive assistance o f co u n s el

. Id. at 377-78. “Thus, an appea l waiver is enfor cea ble if the defe ndant’s waiver of his appellate rig hts was knowing and volunt ary .” Id. at 379. Apar t from arg uing that the factual basis for his plea was inade q u at e, Fluker does not claim that his wavier was unknowing or involuntary

. Under the plea ag reem ent, Fluker could wit hdraw his g uilty plea “if the court decide [d] to impose a sentence highe r t han the maxi mum allowed by this ag ree ment,” which it did not. Fluker agr ee d i n the plea ag ree ment to

-3-No. 10-2526

United States v. Fluke r waive his rig ht to appea l his conviction and ag ree d not to contest his conviction in any postconviction proce eding

. Thus, the plea waiver applies to this challeng e. See id. at 378-79 (holding that, subject to provisos including that the waiver be knowing and voluntary , “an appea l of the denial of a motion to withdraw a g uilty plea is an attack on the conviction subject t o an appea l waiver provision”). Assuming this arg ument is proper ly befor e us, it fails beca use the district court did not abuse its discretion in deny ing Fluker ’s motion to withdraw his plea. See United States v. Benton , 639 F.3d 723, 726-27 (6th Cir.) (obser ving that the district court’s denial of a motion to withdraw a g uilty plea is revie wed for an abuse of discretion), cert

. denied , 132 S. Ct. 599 (2011). Despite Fluker ’s arg ument to the co n t ra ry , the district court had acc epted his g uilty plea well befor e he moved to withdraw it (R.43 at 22). Fur ther, the district court rea sonably deter mined that Fluker had failed to show a fair and just rea son for re questing the withdraw al, g iven that he wa ited over six months to attempt to withdraw the ple a, he did not asse rt his innocenc e, he had ex perie nce with the criminal j u stice sy stem, and his primary basis for withdrawing the plea was that his own conduct had preve nted him from rec eiving an offe nse-leve l reduc tion for acc eptanc e of responsibility

. See id. at 727-29 (holding that the district court did not a buse its discr etion in de ny ing a motion to withdraw a g uilty plea whe re a ll the fac tors weig hed ag ainst the defe ndant). Acc ording ly , we a ffirm the district c ourt’s judg ment.

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