RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0445p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

RHAMEL HAYGOOD,

 Defendant-Appellant.

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No. 07-1771

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 05-80437—Arthur J. Tarnow, District Judge.

Submitted: December 9, 2008

Decided and Filed: December 15, 2008 

Before: GILMAN, SUTTON, and KETHLEDGE, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Margaret Sind Raben, GUREWITZ & RABEN, Detroit, Michigan, for Appellant.

Terrence Randall Haugabook, Sr., ASSISTANT UNITED STATES ATTORNEY, Detroit,

Michigan, for Appellee. 

_________________

OPINION _________________

RONALD LEE GILMAN, Circuit Judge. Rhamel Haygood pled guilty to four counts

relating to his possession of marijuana and firearms that the police found in his home during the

execution of a search warrant. At his sentencing hearing four and a half months later, he attempted

to withdraw his guilty plea. The district court denied that request and sentenced him to 66 months

of imprisonment. Haygood now appeals his conviction and his sentence. He argues that the district

court erred in refusing to allow him to withdraw his plea of guilty, and that his sentence should be

vacated because the district court did not provide him with an opportunity to exercise his right of

allocution at his sentencing hearing. For the reasons set forth below, we AFFIRM Haygood’s

conviction, but VACATE his sentence and REMAND the case for resentencing.

I. BACKGROUND

On January 5, 2005, Haygood was at his home in Detroit, Michigan when police officers

executed a search warrant based on items that they had previously found in trash bags outside the

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No. 07-1771 United States v. Haygood Page 2

house. Inside the house, they found marijuana in gallon-sized plastic bags, twelve marijuana plants,

and nine firearms.

Haygood was later charged in a six-count indictment. In January 2007, the government

presented its case against him at a trial before a jury. At the close of the government’s case, the

parties negotiated a plea agreement and Haygood entered a plea of guilty to the following four

counts: (1) possession of a firearm after a felony conviction, (2) possession of marijuana with the

intent to distribute the drug, (3) possession of a firearm in furtherance of a drug crime, and

(4) maintenance of a “drug-involved” premises.

Haygood returned to court in June 2007 for his sentencing hearing. At that hearing, he

sought to withdraw his guilty plea. He argued that “the charges should not have been brought

because there was a deficient original warrant that was the basis of the execution that gave rise to

the evidence in this particular case.” On appeal, Haygood expands on this point. The search warrant

for his residence was supported by a tip from a confidential informant and two searches of trash bags

outside the house. According to the affidavit underlying the warrant, the trash searches occurred

on September 19, 2004 and January 4, 2005. Haygood claims that those were not the days of his

usual trash pickup, and thus concludes that the officers must have trespassed onto his property to

search the trash rather than simply collecting the bags from the curb as stated in the affidavit.

The district court summarily denied Haygood’s request to withdraw his guilty plea, stating

that even if the warrant was defective, such a defect would not provide a valid basis to withdraw the

plea. Following that ruling, the court sentenced Haygood to 6 months of imprisonment to run

concurrently for three of the counts, and to 60 months of imprisonment for the remaining count of

possessing a firearm in furtherance of a drug crime. The court specified that the 60-month sentence,

which is the statutory minimum for the offense in question, would run consecutively with the 6-

month sentence as required by 18 U.S.C. § 924(D)(ii). Haygood now appeals his conviction,

arguing that the district court erred in refusing his request to withdraw his guilty plea. He also asks

that his sentence be vacated because he was not given the opportunity at the time of sentencing to

exercise his right of allocution.

II. ANALYSIS

A. Motion to withdraw guilty plea

1. Standard of review

We review the denial of a motion to withdraw a guilty plea under the abuse-of-discretion

standard. United States v. Mader, 251 F.3d 1099, 1105 (6th Cir. 2001). 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. Spikes, 158 F.3d 913, 927 (6th Cir. 1998)

(internal quotation marks omitted).

2. Haygood’s argument for withdrawal of his plea

Rule 11 of the Federal Rules of Criminal Procedure describes the appropriate course of

action when a defendant enters a guilty plea. According to Rule 11(d)(2)(B), a voluntarily entered

guilty plea that has been accepted by the district court may be withdrawn before a sentence is

imposed if “the defendant can show a fair and just reason for requesting the withdrawal.” See

generally United States v. Hyde, 520 U.S. 670 (1997) (analyzing Rule 32(e), which was transferred

without change to Rule 11(d)(2)(B) as part of the 2002 Amendments to the Rules).
No. 07-1771 United States v. Haygood Page 3

In the Sixth Circuit, as in other circuits, a multi-factor balancing test has been developed to

guide district courts in deciding whether to grant a motion to withdraw a guilty plea. The factors

in this circuit are the following:

(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.

United States v. Bashara, 27 F.3d 1174, 1181 (6th Cir. 1994), superceded on other grounds as

recognized in United States v. Caseslorente, 220 F.3d 727, 734 (6th Cir. 2000). No one factor

controls; the list is general and nonexclusive. United States v. Bazzi, 94 F.3d 1025, 1027 (6th Cir.

1996). The relevance of each factor will vary according to the “circumstances surrounding the

original entrance of the plea as well as the motion to withdraw.” United States v. Triplett, 828 F.2d

1195, 1197 (6th Cir. 1987). Plea withdrawals should generally not be allowed where a defendant

has made “a tactical decision to enter a plea, wait[ed] several weeks, and then . . . believes he made

a bad choice in pleading guilty.” United States v. Alexander, 948 F.2d 1002, 1004 (6th Cir. 1991)

(quoting United States v. Carr, 740 F.2d 339, 345 (5th Cir. 1984)). Rather, Rule 11(d)(2)(B) is

designed “to allow a hastily entered plea made with unsure heart and confused mind to be undone

. . . .” Alexander, 948 F.2d at 1004.

We first note that the factor of time weighs heavily against Haygood in this case. Haygood

pled guilty on January 18, 2007. He attempted to withdraw his plea four and a half months later,

on June 5, 2007. This court has affirmed the denial of motions to withdraw that came much sooner

than Haygood’s motion, citing lengthy delay as an important factor. See, e.g., United States v.

Cinnamon, 112 F. App’x 415, 418-19 (6th Cir. 2004) (declining to allow a withdrawal motion that

came at least 90 days after the guilty plea); United States v. Baez, 87 F.3d 805, 808 (6th Cir. 1996)

(67 days later); United States v. Goldberg, 862 F.2d 101, 104 (6th Cir. 1988) (55 days later).

In addition to the passage of time weighing heavily against Haygood, his appeal on this issue

is doomed because he suggests only one reason why he should have been allowed to withdraw his

plea: he has concluded that the search warrant that led to his arrest might have been invalid. But

the appropriate way to challenge the validity of the warrant would have been to move for exclusion

of the evidence that was gathered in its execution. See Mapp v. Ohio, 367 U.S. 643, 656 (1961)

(establishing the rule that evidence obtained as the result of a Fourth Amendment violation should

generally be excluded at trial); United States v. Leake, 998 F.2d 1359, 1365-66 (6th Cir. 1993)

(affirming the exclusion at trial of evidence obtained in the execution of a search warrant that was

later invalidated). Such a motion, moreover, must be made before trial. Fed. R. Crim P.

12(b)(3)(C).

In this case, Haygood’s guilty plea came after the close of the prosecution’s proof at trial.

His motion to withdraw was brought several months later. Because the time for making a motion

to exclude evidence had long passed, we conclude that Haygood has not presented a “fair and just

reason” for his plea to be withdrawn. See United States v. Sanders, 125 F. App’x 685, 687 (6th Cir.

2005) (affirming the denial of a motion to withdraw a guilty plea entered 75 days earlier, but still

before trial, where the defendant’s only basis to withdraw his plea was that certain evidence should

be suppressed).

Haygood argues, however, that the district court might not have understood his argument for

the withdrawal of his guilty plea. Indeed, the district court responded to Haygood’s request by
No. 07-1771 United States v. Haygood Page 4

noting that “if . . . the warrant was invalid for some reason . . . there would be nothing that would

prevent [the prosecutor] to go back and reissue the warrant.” This suggests that the judge might

have believed that Haygood was complaining about an arrest warrant and not the search warrant.

Although the district court ideally should have engaged in further discussion to ensure a thorough

response to Haygood’s request for a plea withdrawal, any misinterpretation on the part of the court

was harmless. Even if Haygood had outlined his argument more completely, no reasonable judge

could have found that a long-defaulted challenge to a search warrant provided a “fair and just

reason” to withdraw his guilty plea. The district court therefore did not abuse its discretion in

denying Haygood’s motion.

B. Allocution

Haygood next argues that the district court failed to comply with Rule 32(i)(4)(A)(ii) of the

Federal Rules of Criminal Procedure, which requires a sentencing court to “address the defendant

personally in order to permit the defendant to speak or present any information to mitigate the

sentence.” We apply the de novo standard of review to claims that a defendant was deprived of the

right of allocution at sentencing. United States v. Wolfe, 71 F.3d 611, 614 (6th Cir. 1995).

Compliance with Rule 32(i)(4)(A)(ii) requires the sentencing judge to “personally and

unambiguously invite the defendant to speak in his own behalf.” United States v. Thomas, 875 F.2d

559, 562-63 (6th Cir. 1989).

The government argues that Haygood “in essence” was afforded an opportunity to speak on

his own behalf at sentencing. In support of this contention, the government points to the following

exchange:

THE COURT: Mr. Haygood, you remember you are still under oath?

HAYGOOD: Yes, sir.

THE COURT: Okay. You also remember that you have a Fifth Amendment

right to remain silent. So, you don’t have to answer any of

my questions. Do you understand that?

HAYGOOD: Yes, sir.

. . .

THE COURT: All right. Mr. Haygood, you have a Fifth Amendment right

to remain silent, which means you don’t have to answer my

questions unless you choose to. Do you choose to answer my

questions?

HAYGOOD: I plead the Fifth on all questions.

THE COURT: Okay. And I cannot hold that against you. You have no

obligation to answer my questions, but I will ask your

attorney some questions who has the right to speak on your

behalf.

According to the government, Haygood’s choice to exercise his Fifth Amendment right to

remain silent operated as a waiver of his right of allocution. The Supreme Court long ago disposed

of this argument by recognizing the value of a bright-line rule in this context:
No. 07-1771 United States v. Haygood Page 5

[T]o avoid litigation arising out of ambiguous records in order to determine whether

the trial judge did address himself to the defendant personally, we think that the

problem should be, as it readily can be, taken out of the realm of controversy. This

is easily accomplished. Trial judges before sentencing should, as a matter of good

judicial administration, unambiguously address themselves to the defendant.

Hereafter trial judges should leave no room for doubt that the defendant has been

issued a personal invitation to speak prior to sentencing.

Green v. United States, 365 U.S. 301, 305 (1961) (emphasis added). A reminder of the Fifth

Amendment right to remain silent cannot reasonably be construed as an unambiguous personal

invitation to speak as required by Green and Thomas. See Thomas, 875 F.2d at 561-62 (approving

an allocution procedure where the district court “directly addressed each defendant by name” and

“invited each defendant or his defense counsel to comment individually”). Moreover, we are

unaware of any case that excuses the sentencing judge from providing an allocution opportunity

because the judge instead advised the defendant about his or her Fifth Amendment right to remain

silent. We therefore conclude that the district court erred when it failed to invite Haygood to make

a statement on his own behalf at sentencing.

Such a result may seem unnecessarily inflexible in a case such as this, considering that

Haygood was sentenced to only 6 months of imprisonment on a group of three convictions for which

the advisory Guidelines range was 51 to 63 months. The district court discussed the factors for

fashioning a sentence under 18 U.S.C. § 3553(a) and chose to vary downward on the three counts

at issue in part because the drug-related firearms count carried a mandatory five-year minimum

sentence to run consecutively with the other three. We therefore have our doubts that Haygood

could have said anything to inspire the court to be even more generous in sentencing him.

Nevertheless, this court has noted that prejudice is effectively presumed when allocution is

overlooked because of the “difficulty in establishing that the allocution error affected the outcome

of the district court proceedings.” United States v. Barnett, 398 F.3d 516, 527 (6th Cir. 2005).

Where the defendant “did not receive the shortest sentence allowed by statute,” there is at least some

possibility that “allocution could have had an effect on [the] sentence,” and a new sentencing

hearing must be held. United States v. Riascos-Suarez, 73 F.3d 616, 627-28 (6th Cir. 1996),

abrogated on other grounds by Muscarello v. United States, 524 U.S. 125, 138 (1998).

III. CONCLUSION 

For all of the reasons set forth above, we AFFIRM Haygood’s conviction, but VACATE

his sentence and REMAND the case for resentencing consistent with this opinion.