NO T F OR F UL L- TEX T P UB LIC AT ION F ile Nam e: 09a0121n.06 F iled: F ebruary 12, 2009 No. 07-3926 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT

UNITED STAT ES O F AMERICA,

P laintif f-App ellee, ON AP P EA L F RO M THE v. UNITED STAT ES DIS TRICT COURT F OR THE S OUTHERN BR UC E Y OU NG , DI STR IC T OF OHI O

Defendan t-Appellant. ___________________________________/ BEF OR E: SUH RH EIN RI CH , G ILM AN and W HIT E; Ci r c uitJudg e s. SUHRHEINRICH, Circuit Judge. Def endant B ruce Young was c harg ed with and

c on vic te d o f v iol a tin g 18 U.S.C . § 92 4 a nd 21 U. S.C. § 8 46 . H e ra ise s se ve ra l c ha lle ng e s to his conviction and se ntence . We AF F IRM. I. Bac kgr ound A. F acts Young pleade d g uilty

to participating in a conspira cy with eleven othe r def

endants , including Wan da Cla rk in the Da y ton , Oh io a re a , to po sse ss a nd dis tr ibute c oc a ine fr om m id- 19 97 thr ou g h h is

arr est on April 20, 2000. Young perf ormed a varie ty of “low le vel” f

unctions in furthera

nce of the

c on sp ir a c y . Y ounghe lpe d “ br e a k u p” kil og ra

m qu a nti tie s o f c oc a ine by mixin g th e c oc a ine wi th

c utt inga g e nts a nd

the n r e pa c kagingthe c ut c oc a ine int o s ma lle r q ua nti tie s f or sa le . Y ounga lso assisted in distributi ng the coc aine to purc haser s and in collec ting c ash

. Yo u n g assisted in theB y the tim e Yo un g wa s e ve ntu a lly se nte nc e d, se ve n y e a rs ha d p a sse d f ro m th e date of

his 1 arr est, he ha d been repre sented by six differ ent appointed attorney s, and he ha d been e valuated by four menta l health profe ssionals.

2 d i s t r i b u t i o n o f

a p p r o x i m a t e l y

s i x k i l o g r a m s o f

c o c a i n e . Y o u n g f

u rt h e r a c t e d a s a n “ e n f

o r c e r . ” In this role, he committed acts of violence, including one occa sion of shoot ing someone in the bac k.

B. Pr ocedural History I n April 2000, Young was indicted on one count of c onspiring to distribute coc aine a nd one count of c onspiring to discha rg e a f irea rm during an d i n relation to the drug conspirac y . He wa s detained pe nding tr ial. I n September 2000, Yo u n g wa s separ ately indicted for c onspiring a nd attempting to e scape from his pretr ial detention. I n November 2000, Young was tried a nd convicted on the esc ape indictment. United States v. Y oung , 146 F. App’x 824, 832 (6th Cir. Sept. 8, 2005).

Wha t fol low s is a de sc ri pti on of the pr otr a c te d p ro c e e din g s th a t f oll ow e d in

c on ne c tio n w ith the drugcase , cause d by

Young ’s obstrepero u s and obst ructionist behavior. I n Dec ember 2000, 1 Young asked to re prese nt himself. (R.81.) On De cembe r 18, 2000, during a hearing related t o the drug conspirac y

indictment, Young “we nt bers er k ” an d was e scorted f rom the cour

troom without

a ruling on his request. See U nited States v. Y

oung , 199 F. Supp. 2d 697, 698 (S.D. Ohio 2001). On Dec ember

29, 2000, Young ref

used to leave his cell t o at t en d a cour t appea ranc e. On Janu a ry 3, 20 01 , Y ounga

pp e a re d w ithc ouns e l, Ja me s B ro ok sh ir e , a nd with drew his re qu e st t o repr esent himself. On Fe bruar y 7, 2001, the district court g rante d Br ookshire’s motion to withdraw.3

On April 20, 2001, the district c ourt order ed Young to unde rg o a mental e valuation. Y oung , 14 6 F . App ’x a t 83 2; Y

oung , 199 F. Supp. 2d at 700. Also in the spring of 2001 the cour t appointed Attorney Charles Smiley

. Upon re ceipt of the mental evaluation, the di strict court dire cted Youngto appea r on Jul y 17, 2001, and sche duled sentenc ing on the esca pe trial for J uly 24, 2001. On J uly 17, 2001, the district court de clar ed Youngmentally competent a

nd, afte r a c olloquy

pursuant to Fa ret ta v. Calif or nia , 422 U.S. 806 ( 1 9 7 5 ), g rante d Young permission to procee d pr o s e in the drug case , with Smi ley acting as leg al advisor. See Young , 146 F. App’ x at 832 (noting that the district court e ng ag ed in the “nec essar y colloquy ” with Young befor e allowing him to represe nt himself). On July 20 , 2 00 1, in Y oung ’s fi rs t pro se pr oc e e din g , Yo un g “ e nte re d in to .
. . no thi ngle ss than a psy chotic ra g e” w hen th e d i strict court sug g ested that he revie w discover y materia ls in the Marsha l’s office rathe r than at the jail. Y oung , 199 F. Supp. 2d at 699. On Octobe r 18, 2001, the district cour t entere d a publi shed order finding Young in criminal contempt base d on the outbursts of Dec em b er 1 8 , 2 0 0 0 , and Jul y 20, 2001. See id. The c ourt

vacated its earlier

deter mination of competenc y

t o s t an d t rial, re manded Youngto underg o a tho ro ug h m e n t a l c o mp e t e n c y e v a l u a t i o n a tt h e F e d e r a l M e d i c a l C e n t e r , r e v o k e d Y o u n g ’ s r i g h tto self-r epre sentation, and re appointed Attorne y Smil ey as counse l of rec ord. Id. at 700-02. Young sent the court a letter asking it to rec onsider it s decision to revoke Young ’s rig ht of self-r epre sentation. The district co u rt d enied the reque st. On November 29, 2001, Smil ey

moved to withdraw.4

On F e br ua ry 15 , 200 2, the dis tr ic t court re c e ive d Y oung ’s me nta l e va luatio n a nd fo un d h im competent to stand trial. Y oung , 146 F. App ’x at 8 3 3

. Also, Attorney Smil ey was re place d by Assistant Fede ral Public Def ender Be th Goldstein L ewis. On J uly 23, 2002, L ewis m oved to withdraw. On J uly 31, 2002, the district court g rante d her reque st, and appointed the actua l F eder al Public De fende r, Steven Keller , as substitut e counsel. On Aug ust 19, 2002, Keller moved to withdra w as c o u n s el for Young . On Novembe r 21, 2002, the district court appointed A ttorney Michae l Murry

to repre sent Young

. On September

9, 2003, the district court sente nced Y oung to 48 mo n th s o f in c arc eration, after

a one- level downwa

rd depar ture. This Court aff

irmed the judgme nt of conviction and sente nce. See Y oung , 146 F. App’ x 824. On S eptember 14, 2003, on the eve of the drugtrial, Young wrote a pr o s e letter to the prosec utor, Assistant United States Attorney Marg are t Quinn, offer ing to plea d g uilty if the United Sta te s w ou ld dis mis s the c ha rg e s ag a ins t co- c on sp ir a tor Wan da Cla rk

. Yo un g did

no t c on su lt w ith Murry , who was c ounsel of re cord at this t ime. I n response , Quinn met with Young in the Fe dera l Building in Day

ton, Ohio, in the Marshal ’s offic e, althoug h Murry was not pre sent. Quinn later testified that she met brie fly with Young in the Marsha l’s cell block a nd asked him whe ther he was serious about plea ding guilty . She explained that Murry had bee n in the fe d eral building but that the re ha d b e e n “ so me c on fu sio n” a nd Murr y ha d le ft . Q uinn s a id t

hat th e y we re tr y in g to g e t in tou c h w ithMurr

y a g a in be fo re Yo un g wa s b ro ug ht t o th e U. S. A tto rn e y s’ of fi c e a nd that sh e me re ly “we nt to ex plain that we br oug ht him over to talk about the letter. A nd that was it.” Severa l da

y s later, on September 25, 2003, Quinn prese nted the plea documents to Y oung and Murr y in the Day

ton Offic e of the Unit ed S tates Att orney . Also prese nt were deputies fr om theThe a g ree ment clea rly states t his arr ang ement at the out set: “B ruce Young , individually and 2 throug h his at t o rn ey , Michae l K. Murry , Esq., and the United States, by counsel, a g ree as follows . . . .” 5 United States Marsha l ’s Office a s well as Wanda Clark’ s attorney . Young questioned Murry ’s prese nce, stating that he had fire d Murry sever al months earli er, a nd ref used to ac cept a

ny advice from Murr

y . At the meeting , Quinn showed Younga stateme nt of fac ts upon which his guilty pleas would be base d. Young said the statement wa s false. Q uinn expl ained that the G overnme nt believed it c ou ld p ro ve tho se fa c ts a t tr ia l. Yo un g c on te nd e d oth e rw ise ; he te sti fi e d th a t Q uinn to ld h im t o perjure himself when a sked by the cour t if the fac ts were true. Young also objecte d to a provision in the draf t plea ag ree m en t that included a

rec ommendation for a

n acc eptanc e-of

-re sponsibili ty adjustment, and that provision was r emoved. The fina l ag ree ment provided that Youngwould enter g uilty pleas to C o u n ts 1 and 2 of the I ndictment and, in re turn, the Gove rnment would file the attached A g ree d Entry . The Ag ree d Entry provided that if Wanda Clark wo uld, int e r a lia , proff er, w ithdraw he r re quest for a new tria l, and waive he r rig ht to appea l her conviction, the Government would file a substantial assistance motion [U.S .S.G. § 5K1.1] on her behalf and not pursue forf

eiture of her residenc e at 144 Oaklaw n Avenue in Day ton, Ohio. Young signe d the pl ea ag ree ment. So did Murry

. The c hang e-of -plea hear ing w as 2 held the same day , September 25, 2003, with Murry prese nt. The district court state d at the outset of the he aringthat “Mr Youngis present in open court with c ounsel.” Young made it c lear that he had no re lationship with Murry at that point and that Murry had off ere d his ass i stance but Young de c lin e d it . Y ounga lso tol d th e dis tr ic t c ourt that he tol d M ur

ry that he did

no t w a nt t o s pe a k w ith Murry , that he tol d Murry that he understood his rig hts, and that he felt that Murry was not working in Y oung ’s best interests. The district c ourt told Young that it was his decision not to use counsel6

and that he c ould chang e his mind. The cour t also expl ained that talking to Murry about t he fa cts of the ca se mig ht have he lped in his defense at trial. The district court rea d the s tatement of facts to Young , and Youngag ree d that the fa cts wer e true. The district court also explained to Young what rig hts he would be wa iving. F urther, the court explained the sentenc e Youngwas fa cing . Young acknow ledg ed that h e h ad sig ned the plea ag ree ment and that no other prom i s es had bee n made to him. The district cour t also questioned Murry about the plea

ag ree ment. Young indicated that he was plea ding guilty voluntarily . When ask ed i f h e was plea ding guilty beca use he w as g uilty , Young said “y es,” w hile shaking his head “no.” T he court questioned the seeming contra diction, to which Young replied: “ Yes. I ’m g uilty .” Young then enter ed g uilty pleas to Counts 1 and 2. Two day s after

pleading g uilty , Young wrote his probation office r, B arba ra U hling, stating that he was innocent and had been forced to plead guilty

. I n October 2003, he sent a simil ar le tter to the court. On Novembe r 19, 2003, Youngfiled a pr o s e motion for appointment of newcounsel. Murr y

s en t t h e court a letter explaining the issues he continued to f ace in his repr esentation of Y o u n g, including a

conce rn for his safe ty
. Murry also forwa rded to the c ourt a thre atening letter Younghad sent to Murry

. On J u l y 9, 2004, Young filed a pro se motion requesting a hea ring on his alleg ations of g overnme nt misconduct. He supplemente d the motion on J uly 27, 2004. On J anuar

y 27, 2005 , At torney

Hal Ar enstein wa s appointed to repr esent Youngfor sentenc ing.7

On April 18, 2005, Youngfiled a pro se motion requesting that he be permitted to withdraw his guilty pleas. The district court conducted evidentiary hear ings on the motion on May 12, 2005, and Jul y 1, 2005, and ente red a

decision deny

ing the motion on May

10, 2006. On Au g us t 8, 20 06 , the dis tr ic t c ourt ov e rr ru le d Y oung ’s pr o s e motions for a hea ring on the alleg ed prose cutorial misconduct a s moot because the court had ex plored the issue at the evide ntiary hear ings c onducted on Young ’s re quest to withdraw his g uilty pleas. The pre sentenc e re port (“PSR”) set Young ’s Total Off ense L evel at 32 and a Criminal History Categ ory of VI , which would result in a sente ncing g uidelines rang e of 210 to 262 months imprisonment on the drug conspirac y count. Prior to a nd at the time of sente ncing , Young asked the district court to run his sentenc e conc urre nt to his esca pe sentence. The district court indicate d that it co u ld n o t d o s o b e c a

u s e th e e s c a

p e s e n te n c e h a d a lr e a dy b e e n s e r v e d in f u ll

. T h e d is tr ict court sentenc ed Youngto 186 months’ imprisonm ent for the drug conspirac y ch ar ge, afte r depa

rting downwar d by

24 months based on the extensive amo u n t o f time Young spent in jail under “lockdown” conditions; 120 mont hs’ imprisonment on t he 18 U.S.C. § 924(c) offe nse; and 6 additional months’ imprisonment for the t wo criminal contempt charg es. The ne t result was a total sentenc e of 312 months’ imprisonment. Young appea ls. II. Ana lys is A. Faretta Warnings For the first time on appe al Young argues t h at t h e t rial cour t should have administere d

wa rn i n gs re gar d i n g t h e d an ger s o f p ro ce ed i n g pr o s e a t th e tim e he ple a de d g uil ty , a nd tha t hi s g uil ty ple a s sh ou ld b e va c a te d a s a re su lt.This Court has adopted a series of questions from 1 Benc h Book for United States District 3 J ud ge s 1.02-2 to -5 (3d e d.1986) that a district c ourt should ask the def endant to esta

blish the defe ndant’s waiver meets this standard. Id. (c i t i n g Un ite d S tat es v . M c Do we ll , 814 F.2d 245, 250 (6th Cir. 1987)).

8 A criminal defe ndant has a constitutionally protec ted rig ht to prese nt his own d ef ense. Fa re tta v . Ca lif

or nia , 42 2 U. S. 80 6, 83 3- 34 (1 97 5) ; United St ates v. Cromer , 3 89 F .3 d 6 62 , 6 80 (6 th Cir. 2004). By exercising this rig ht, the defendant necessa rily waives his constit utional rig ht to be repr esente d by

counsel. Cr o mer , 3 89 F.3d at 680. This waiver of counsel must be both knowing and voluntary

. Fa re tta , 4 22 U. S. at 83 5; Cromer , 389 F.3d at 680. 3 Gene rally , when r eviewingsuch cla ims, we ex amine fact findings for clear err or and le g al conclusions de novo. Id. a t 679. He re , h ow e ve r, we mus t de te rm ine the sta nd a rd of re vie w b e c a

us e Young did not object at his chang e of plea hear ing or at any other time in the district court. Young claims that the applica

ble standar d of re view–ple n ar y o r p l ain error whe n there is no objection b el o w– re m ai n s an o p en qu es t i o n i n t h i s C i rc u i t , ci t i n g United States v. Mc Bride , 362 F.3d 360, 365- 66 (6 th C ir . 2 00 4) (n oti ngthe div e rg e nt a pp ro a c he s amon g st v a ri ou s pa ne ls, bu t fi nd ing no ne e d to resolve the ambig uity beca use the result would be the same on the fa cts of the c ase) . Howeve r, as the g overnme nt points out , the McBride rule a pplies to the initial

waiver of the rig ht to counsel. See id. As Young himself notes, two y ear s befor e he pleade d g uilty , the district court c onducted a Fa re tta hear ing, a llowed Young to repre sent hims el f, an d t hen a f ew da y s later r evoked his rig ht to selfrepr esentation based on Young ’s profa ne outburst. See Young , 199 F . Su pp . 2 d 6 97 . T hu s, it appea rs that the plain er

ror standa rd applies. Cf. McBride , 362 F .3 d at 366 -6 7 (ho ldi ngthat “ pla in

err or” applied to a claim that the di strict court should have r eadministere d Fa re tta war ning a t a later sentenc ing he aring “bec ause, at the start of the sentenc ing pr ocee ding, [the def endant] could have9

objected to c ontinuing his self-r epre sentation”; fur ther holding that a defenda nt’s waiver

of counse l at trial “c arr ies over to subseque nt proce eding s absent a substantial c hang e in circ umstances” ). Un de r t he “ pla in e rr or ” sta

nd a rd of re vie w, the de fe nd a nt m us t de mon str a te a n e rr or , th a t is pla in, tha t a ff e c te d his su

bs tanti a l ri g hts , a nd that se ri ou sly a ff e c te d th e fa ir

ne ss, int e g ri ty , o r p ub lic reputation of the judicial proce eding s. United States v. Page , 520 F.3d 545, 546-47 (6th C ir. 2008). The district court did not commit err or, and cer tainly not plain err or, in this case, by acc epting Young ’s g uilty pleas without a full set of Fa re tta war nings. F irst of all, Young was re prese nted by counsel whe n he entered the pleas. The dist rict court had revoked his rig ht to self-re prese ntation some two y ear s ear lier. See Young , 199 F. Supp. 2d at 699. Youngsubsequently h ad thre e more attorney s appointed, and Mur ry , his fifth defe nse counse l, was pre sent during the pl ea proce ss. The district court advised Young that it would be to his advanta g e to coope rate with Murry , but Young

m a d e i tv e r

y c l e a r t h a t h e h a d d e c i d e d n o tt o u s e c o u n s e l

. T hu s , f u ll Fare tta proce dures we re not require d beca

use the district cour

t had pre viously

revoke d Young ’s rig ht to procee d pr o s e and had appointed counse l to repre sent him. Further , Young did not clear ly and unequivoc ally

asser t his right to proce ed pr o s e at that point. I n Cr o mer , th is C ourt ru le d th a t “Fa re tta pr oc e dure s are on ly require d when a

defe ndant has c lear ly

and u n eq u ivocally

asser ted his rig ht to procee d pr o s e .” Cromer , 3 89 F .3 d at 68 2. Th e ratio na le fo r that rul e be a rs re pe a tin g he re : “Re qu ir inga n a rt ic ulate and unmistakable demand of the rig ht to procee d pr o s e decr ease s the dang er of a savvy defe ndant manipulating these two mutually exclusive rights to put the district court in a Catch-22.” Id . at 683. N o r w a s th e r e p r e

ju d ic e , a s s u mi n g a n y

e r r o r . Y o u n g h a d

in f a c t b e e n a d mi n is te r e d

the complete Fa re tta war

nings two y ear s ear lier, and the court had initially allowed Youngto repre sentYoung acknow ledg es in his brief that the court explained the rights that he would have at 4 trial and that he told the court that he under stood and knew that he was w aiving them. Appellant’s Br . at 15. Rather, Y oung ’s complaint is merely that “the c ourt di d n o t t alk to Young about the disadvantag es of se lf repr esentation.” Id. 10 himself. See Young , 146 F. App’ x at 832. Thus, Young had been properly war ned about the dang ers of self- repr esentation. Young ’s s u bstantial rig hts were not affe cted. The rec ord re flec ts that Young ’s plea w as knowing and volunt ary . The dist rict court car efully followed the require ments of Feder al Rule of Criminal Procedure 11, and Young does not c ontend otherwise. The district c ourt rea d the Statement of F acts to Young , who admitted they wer e true
. Young ag ree d that he wa s pleading g uilty to the 4 two char g es voluntarily

beca use he w as g uilty

of them. The distri ct co u rt specific ally found that Young knowing ly

and intelligently waived his r ights, there was a fac tual basis for the pleas, the ple as

wer e voluntary , and Youngwas g uilty as cha rg ed. No r w e re the int e g ri ty

of the pr oc e e din g s c omp ro mis e d. Yo un g wa s an extr e me ly dif fi c ult defe ndant. He w as on his fifth attorney at the time, a nd the previous four

had all moved to withdra

w

ou t of fe a r o r a n in a bil ity to g e t a lon g wi th Y oung . H e re fu se d to c oo pe ra te wi th M ur

ry . H e ha d lo st control in the cour

troom on two occa sions, hurling ra cial and r elig ious epithet s , s lurs, and

o b s cenities. See Young , 1 9 9 F

. Su p p . 2 d 6 9 7

. N o tw it

h s ta n d in g th e s e d if

f ic u lt c ir c u ms ta

n c e s , the district court meticulously ensure d that Young understood the full import of pleading g uilty and that Y o u n g ’ s p l e a

w a s v o l u n t a r

y. I n short, there is no error , plain or otherw ise.

B. Motion to Withdraw Guilty P leas11

Ne xt, Y oungc on te nd s th a t th e dis tr ic t c ourt e rr e d in de nyinghi s mo tio n to wi thd ra w h is g uilty pleas

. T h i s C o u rt revie ws the denia l of a motion to withdraw a guilty plea f or abuse of discretion. Un ite d S

tat es v . E lli

s , 4 70 F .3 d 2 75 , 2 80 (6 th C ir . 2 00 6). A dis tr ic t c ourt a bu se s it s discretion if it relies on c lear ly err oneous fi n d ings of

fac t, improperly

applies the law , uses an

err oneous leg al standar d, or commits a clea r err or of judgme nt in its c onclusion upon weig hing the rele vant fa ctors. Id. A def endant doe s not have a

n absolute rig ht to withdraw a g uilty plea and has the burde n of proving that he is entitled to withdraw it. Id. To preva il, Young must show a “f air a nd just reason for r equesting the withdraw al.” F ed. R. Crim. P. 11(d)( 2)(B ). The purpose of t he rule is “to allow a hastily entered p l ea ma de with unsure he art a nd confuse d mind to be undone, not to allow a defe ndant to make a

tactica l decision to enter a plea, wa it severa l we ek s , and then obtain a wi t h d ra wal if he believes he made a bad choic e in pleadingg uilty .” El lis , 4 7 0 F

. 3 d a t 2 8 0-81. Ra the r, “ [w]ithd

ra wa l is a pp ro pr ia te wh e re the re is a re a l c on fu sio n or m isund e rs tand ingof the te rm s of the a g ree ment.” Id. at 281. This Court considers a number of non-exhaustive fac tors in de termining whether relief under Rul e 11 (d )( 2) (B ) i s a

pp ro pr ia te . T he y

inc lud e : (1 ) the a mou

nt o f t ime tha

t e la ps e d b e tw e e n th e ple a

a nd the mot ion

to w ith dr a w i t; (2) the pr esenc e (or

absenc e) of

a valid re ason for

the fa ilure to move for

withdrawa l e a rl ie r i n th e pr oc e e din g s; ( 3) wh e the r t he de fe nd a nt h a s a sse rt e d o r m a int a ine d h is innocenc e; (4) the circ umstances unde rly ing the entry o f the g uilty

plea; (5) the defe n d an t 's nature a

nd backg round; (6) the deg ree to which the def endant ha s had prior ex perie nce with the criminal justice sy stem; and (7) potential prejudice to the g overnme nt if the motion to wit hdrawis gr anted. Id. (q u o t i n g Un ite d S

tat es v . B as ha ra , 27 F.3d 1174, 1181 ( 6th Cir. 1994)).12

Apply ing the se factors, the district court found that Youngfailed to off er a valid rea son for

wa i t i n g m o re t h an ei gh t ee n m o n t h s t o fi l e h i s m o t i o n . S p ec i f i c al l y , t h e c o u rt n o t edt h at al t h o u gh Young decla

red his innoce nce shor

tly afte r entering his pleas in letters to t he probation officer and the c ourt , h e a lso ind ic a te d in tho se same le tte rs that he wa s no t a tte mpt ingto w ith dr a w h is guil ty pleas. F urther, dur ing a

confe renc e ca ll in Februa

ry 2005, more than sixteen months after Y oung had entered h i s g uilty

pleas, Young ’s newly -appointed c ounsel informed the court that Youngdid not

wa n tt o wi t h dra w h i s p l ea s . T h e c o u rt n o t ed t h at d es p i t e th e l o n g d el ay u n t i l h i s ac tu al s en t en ci n g, during which time Young was without counsel ( Murry had re signe d), it was cle ar that Young understood that he c ould move to withdraw his g uilty pleas, given his corresponde nce stating that he wa s not seeking such re lief at that time. The district court also conclude d that Young had not maintained his innoce nce de spite the

corr espondenc e, bec ause he had admitted his g uilt under oath at t he cha ng e-of - plea hear ing. T he court found that “Young voluntarily chose to pre vent Murry

from beingan ac tive participa nt in the events lea ding to his ente ring the guilty pleas.” Thus, Young could not establish that the assistance his a tto rn e y pr ov ide d wa s bel ow the re a so na ble ne ss sta

nd a rd , nor

tha t he wo uld

no t ha ve ple d g uil ty if his relationship with his lawy er ha d been be tter, so he c ould not show prejudice unde r Strickland v. W ashington , 466 U.S. 668 ( 1984). The c ourt found that Younghad sig nificant prior experience with the criminal justice sy stem, having been c onvicted on g uilty pleas of many

offe nses, and noted t h a tt h r o u g h o u t t h i s p r o s e c u t i o n , Y o u n g h a d f i l e d m a n y pr o s e motions and letters to the court whic h de mon str a te d a sig nif

ic a nt un de rs tand ing of the le g a l sy ste m. L a stl y , the c ourt fo un d p re

jud ic e to the Go ve rn me nt b e c a

us e it w ou ld s til l be bo un d to ho no r its a g re e me nt wi th Wan da Cla rk e ve n if Young wer e allowe d to withdraw his g uilty pleas.The letter to Uhling states in pertinent part: “I am not making this statement in an attempt 5 to withdraw my

plea. I make it in an attempt to g ain some lenienc y .” On the othe r hand, the letter to the court states me rely that: “I am innocent of

these c harg es ag ainst me.” 13 Young claims that sever al fa ctors support his mot i o n to withdraw his pleas. F irst, Young claims th a t h e d id n o t h a v e c o u n s e l u n ti l Ja n u a r y 2 7 , 2 0 0 5 , w h ic h c a

u s e d th e d e la

y in f il ing the motion. S econd, he said he wa s innocent on repe ated occasions: i n letters to Quinn, the cour t, and the pr ob a tio n o ff

ic e r; duri ngthe pr e pa

ra tio n o f h is PS R; a

nd in h is m oti on

to w ith dr a w h is guil ty p le a s . T h ir d , h e w a s c h r o n ic a ll y d e p r e s s e d

. F o u rth , h e h a d b e e n k e p t in s o li ta r y confine ment for y ear s. Fifth, his pleas we re induc ed by prosec utorial misconduct. Yo un g c a nn ot sh ow that the dis tr ic t c ourt a bu se d its dis c re tio n in de ny in g his mo ti on to withdraw his g uilty

pleas. Although Young lacke d counsel fr om Dece mber 2003 until J anuar y 2005, as the district cour

t noted, the re cord refle cts that Young understood how to move to withdraw his guilty pleas, a s most clearly

d em o n s t ra t ed in his corre spondence to Uhling that he was not attempting to do so. Fu rt h er, as pointed out by the district court, duringthe per iod of delay , the 5 dis tr ic t c ourt

no t on ly tr ie d t o ob tai n a

n atto rn e y

to r e pr e se nt Y oung , b ut atte mpt e d to sp e a k w ith Young direc tly

during confe renc e ca lls with t he Gove rnment and Mur ry to expl ain t o Young the status of his prosecution. Youngref used to participate in either c onfer ence call. ( Id. ) More importantly , Young admitted in the hear ing on May 12, 2005, that when he initially met wi th A re ns te in i n Jan

ua ry 20 05 , h e tol d h is n e w l a wy e r t hat he did no t wa

nt to wi thd

ra w h is guil ty pleas. This fa ct was c onfirmed to the court in a confere nce call wit h the court on Fe bruar y 9, 2005. Thus, Young cannot plausibly sug g est that the dela

y was c aused by

the lack of

repr esentation. Finally , Young eventua lly filed a p r o se motion to wit hdraw after Are nstein, with whom Yo un g g ot a lon g , h a d b e e n a pp oin te d. Thus , the dis tr ic t c ourt did no t a bu se its dis c re tio n inContrary to Young ’s assert i o n i n h i s brief, the district court did not find that Young had 6 failed to a ssert his innocenc e. Rather , the district court noted that Young decla red his innoce nce, but found such state ments a “moc kery” g iven his statements under oath pleading g uilty

. 14 concludi n g t hat the eig hteen- month delay betwee n the plea a

nd the motion was a strongfac tor justify ing the denial of the motion. See, e .g. , United St ates v. Valdez , 362 F.3d 903, 912- 13 (6th Cir. 2004) (holding that a seventy -five day delay justified denial of motion to withdraw, espe cially wher e the de fe nd a nt’ s a lle g e d cr imi na l con du c t wa s des c ri be d at le a st f our t ime s p ri or

to t he e ntr y of his g uilty plea, a ffirmatively

assented to the de scription th r e e ti me s, he discussed the indictment a nd plea wi th h is atto rn e y , a

nd he un de rs too d E ng lis h) ; United States v. Durham , 178 F .3 d 796 , 798 -9 9 ( 6th Cir. 1999) (stating that a seve nty -seve n day delay was the strong est fac tor supporting the denial of the def endant’ s motion to withdraw his plea). Cf. United States v. McCoy , 155 F. App’ x 199, 203-04 (6th Cir. 2005) (holding that the district court a bused its discretion in denying the defe ndant’s motion to withdraw his g uilty

plea despite a 133-day delay beca use t he defenda

nt notified his former c ounsel of his w ish to withdraw the plea, his ne w counsel filed the motion within 45 day s of being appointed

c o u n s e l, th e d e f

e n d a n t e xp r e s s e d d is s a ti s f a c ti o n w it h n e w c o u n s e l u

p o n p le a d in g g u il ty , a n d the

rec ord of the ple a colloquy contained no evidenc e that the defendant was advised of the rig hts he was waiving ). Se e ge ne ra lly , El lis , 4 7 0 F

. 3 d a t 2 8 1

- 8 2 ( n o t i n g t h a t t h i s C o u rt h a s d e n i e d m o t i o n s to withdraw g u il ty p le a s w h e r e th e d e la y w a s s h o rte r th a n s ix mo n th s ; li s ti n g c a s e s )

. While Young decla red his innoce nce, he also stat ed under oath that he was guilty and that he a g ree d with the statement of f

acts supporting his guilty pleas. F urthermor e, the guilty -p l ea t ra n script re flec ts that the district court c onfirmed with Youngthat he under stood the fac tual basis for th e pleas, and

a sc e rt a ine d th e vo lun tari ne ss o f t he ple a s. Thus , th e dis tr ic t c ourt did no t a bu se its di sc re tio n in fi nd ingYo un g ’s a sse rt ion s o f i nn oc e nc e a “ moc ke ry” of

the jud ic ia l sy ste m. 615

B e c a us e Yo un g

re fu se d M urry ’s a ss is tan ce, t he d is tr ict cou rtmet icu lo us ly revi ewedth e fa c ts, the voluntariness of the plea , and the nature of the rig hts Young was wa iving. See U nited States v. Murray , 6 6 F . App ’x 60 0, 60 4- 05 (6 th Cir

. 20 03 ) (h old ing that the dis tr ic t c ourt ’s lon g c oll oq uy in

acc ordanc e with Fe d. R. Crim. P. 11( d) and the de fenda nt’s response s, did not support a finding that the def endant ha d enter ed his plea with an “unsure heart and confuse d mind”). More over, Y oung

was a n experience d criminal. At the May 12, 2 0 0 5 hear ing on his motion to withdraw, Young admitted that h e had a

long c riminal history

and that on seve ral oc casions he ha d repr esente d himself. See D urham , 178 F.3d at 799 (finding that the def endant ’s prior ex perie nce w ith the criminal justice sy stem due to his conviction for bank robber y indicated that the def

endant did not articulate a fair r eason f

or withdraw ing his plea ). Also, the re cord shows that while Young has bee n diag nosed with antisocial per sonality disorder, he is an “e x tremely intelligent individual.” F ina lly , a s th e dis tr ic t c ourt po int e d ou t, t he Go ve rn me nt w ou ld s uf fe r p re jud ic e be c a

us e it would still be oblig ated to show lenie nce towa rd Wanda Clark, e ven if Young did not honor his end of the ba rg ain by withdrawingfrom the guilty plea. In any event, “ the g overnme nt is not required to establish prejudice that would result from a plea withdra wal, unless and until the def endant advanc es and e stablishes a fair and just reason for allowing the withdraw al.” El lis , 470 F.3d at 286 (interna l quotation marks and citation omitted). For the re asons discussed inf ra , Young ’s claim of pr osecutoria l misconduct also does not support his positi on. I n sum, the di strict court did not abuse its discre tion in deny ing Y oung ’s motion to withdraw his guilty pleas. C. Downw ard Depart ureI n support of this theory of depa rture, Y oung cites decisions from other circ uits. W hile they 7 su pp or t hi s g e ne ra l th e or

y , n on e a pp lie d to a de pa

rt ur e re qu e st t o im

po se a se nte nc e c on c ur

re nt w ith another sentenc e not deeme d to be part of t he instant offe nse. See United States v. Barrera- Saucedo , 385 F.3d 533, 537 (5th Cir. 2004) (holding t hat t he dis trict court could g rant downw ard de parture to an illeg al alien for all or pa rt of time serve d in state custody until he was seized by

fede ral imm ig ratio n a

uth or iti e s) ; United States v. Sanc hez-Rodriguez , 161 F.3d 556, 563-64 (9th Cir. 1998) (e n b a nc ) ( ho ldi ngthat a do wnwa rd de pa rt ur e is p e rm iss ibl e ba se d o n a de fe nd a nt’ s lo st o pp or

tun ity to serve his fe dera l sentence concur re n t l y wi t h his state sentenc e due to the de lay in commencing fe de ra l pr oc e e din g s) ; United States v. Saldana , 109 F.3d 100, 104-05 (1st Cir. 1997) (sug g esting that suc h de pa

rt ur e may be a pp ro pr ia te ); Cf. United States v. Lost Sant os , 283 F.3d 422, 428- 29 (2d Cir. 2002) (same , but further requiring that the delay in fede ral prose cution must have bee n in bad faith or unr easona

ble). Rather, a discretionar

y denial to depar

t downwar d is reviewa

ble only if: “(1) the sentenc e 8 was imposed in violation of the law; (2) it was imposed as a r esult of an incorrec t application of the g uidelines; (3) the se ntence repr esente d an upwa rd depa rture; or (4) the se ntence was im posed for ‘an of fense for whic h there is no [ S] entenc ing [ G] u ideline and is plainly unrea sonable.’” Pu c k

e tt, 422 F.3d at 346 (quoting 18 U .S.C. § 3742(a)).

16 Young argues that the trial c ourt er re d i n concluding that it could not depart downw ard or otherwise a djust his s entenc e to take into ac count Young ’s “lost opportunity ” to serve his drug conspirac y

sentenc e conc urre ntly

with his escape sentenc e. The Gove rnment re sponds that ( 1) the 7 dis tr ic t c ourt

did no t mi sund e rs tand

its a uth or ity , ( 2) Yo un g ne ve r a sk e d th e dis tr ic t c ourt to d e pa rt , and (3) even if

he had a sked, his argument would still be unre viewable

. A d istri c t c ourt ’s de c isi on no t to de pa

rt do wnwa

rd is not su

bje c t to re vie w on ap pe a l “ ‘u nle ss the re cord r efle cts that the di strict court was not awa re of or did not understand its discre tion to make such a de parture .’” Un ite d S tat es v . P uc k

e tt , 4 2 2 F. 3 d 3 4 0 , 3 4 4 (6 t h C i r . 2 0 0 5 ) (q u o t i n g United Sta te s v . S te war t , 306 F.3d 295, 329 (6th Cir. 2002)). A di strict court need not expli citly state on 8 the re cord that it is awa

re of its discretionary

authority to depar t downwar d. Id. at 346. And, abse nt

c le a r e vid e nc e to the con trary , a dis tr ic t c ourt

is p re su me d to be a wa

re of its dis c re tio n to de pa

rt
. Un ite d S tat es v . O wus u , 199 F.3d 329, 349 ( 6th Cir. 2000). We review t h e t ra n s cr ipt of the17

se nte nc inghe a ri ngde no vo in d e te rm ini ngwh e the r t he dis tr ic t c ourt

wa s a wa re of its a uth or ity to depar t. United States v. W

illiams , 355 F.3d 893, 901 ( 6th Cir. 2003). Fur ther, a defe ndant may

not appea l a discretionar

y fac tor if he f

ails to ask the district court to exercise its discretion during sentenc ing. United States v. Simmons , 501 F.3d 620, 624 ( 6th Cir. 2 0 0 7 ) ( s t a t i n g t h a t“ [ t ] h e r e i s n o a p p e a l a b l e i s s u e s a v e d

b y [ Un ite d S

tat es v . B os tic , 371 F.3d 865 (6th Cir. 2004)] when a de fenda nt wishes to appea l a discre tionary fac tor and does not reque st the judge to exercise such discretion during the sentenc ing he aring ”). “ I ndeed . . . disc retionar y fac tors

are not even a

ppeala ble when disc retion is r equeste d and the judge ref used or did not depart a s far as the de fenda

nt wanted so long as the judg e appr eciated his discretion to downwa rdly depar t.” Id. The re cord r efle cts that Young did not preser ve this claim. Although Young asked the court both prior to and at the time of sentenc ing to run hi s sentenc e concurre nt with his esca pe sente nce, he did not ask t he court to g rant a depar ture or varia

nce based on some lost opportunity . Thus, the dis tr ic t c ourt ’s re sp on se a t se nte nc ing re sp on ds to that re qu e st an d in no wa y re fl e c ts an ina bil ity to oth e rw ise de pa

rt : T h e i s s u e o f how to factor in cr edit for the dr ug conspirac y

case and the esca pe ca se is n o t an ea s y o n e, but it’s been a nswere d by

the B urea

u of Prisons by p h o n e c al l

. Ih av e n o t h i n g i n wr i t i n g.

. . . Idon’t have the power at t his point to impose a conc urre nt sentence . Number one, the es ca p e cha

rg e has be en ser

ved, and I

can’ t impose a sentenc e conc urre nt wi th a se nte nc e a lr e a dy

se rv e d. I c a n’ t ba c kd a te thi s se nte nc e to r un it c on c ur re nt. That would be a

n illega l sentence .” Young does not dispute that the court’s state ment is corre ct. ( See Ap pe lla nt’ s B r. a t 27 .) Ab se nt a specific reque st for a dow nwar d depar ture or va rianc e due to a l o s t o pportunity to run sentenc es18

c on c ur re ntl y , it i s h a rd

to s e e ho w the dis tr ic t c ourt wa s so me ho w c on fu se d a bo ut i ts a uth or ity to do so, sin c e tha t wa s n ot t he iss ue it wa s a sk

e d to ad dr ess . Although Y oung objected to the inc lusion of the esca pe convic tion in his crimi nal history

score , he neve r aske d t h e co urt to g rant a depar ture ba sed on the fa ct that his drug conspirac y and

esca pe sente nces c ould no long er run concur rently

. At the sentenc ing hear ing, counsel for Young actua lly stated during the course of arguing his objections to the pre-sentenc e report t hat “later on” he would be asking the court to “at least g ive hi m cre dit for time serve d beca use it is part and pa

rce l of the orig inal conspirac y .” Youngm ad e t his statement in the context of arg uing that the esca pe conviction should not be included i n Young ’s cr iminal hist ory score . Howeve r, Youngnever actua lly asked the court for

such cr ed i t based on a

“lost opportunity .” Youngref err ed to the “lockdow n” conditions in the local jails prior to his sentenc ing, but this was in the c ontext of explaining his behaviora l problems in jail. Young a lso alluded to the fa ct t h at he had be en

c on tin uo us ly inc a rc e rate d f

or se ve n y e a rs , b ut t

his a g a in w a s in

the c on te xt of

e xplain in g his be havio ra l pr ob le ms i n p ri so n a nd the c ourt

ro om. I n an y e ve nt, Yo un g re c e ive d a tw e nty -f our m on th varia nce f or the time spent under

these conditions. This was in addition to a one-level downw ard depar ture for delay in sentencingin his escape case . Finally , though Y oung objected to the c ourt’s inclusion of the esc ape c onviction in his cr iminal hist ory score , at no time did Young argue that he should rece ive some sort of depar ture or cre dit ba sed on the fac t that his drug c onspiracy and esc ape sentenc es could no long er r un concur

rently . Thus, the cour

t’s failure t o gra n t a depa rture on a discretionar

y fac tor is not appeala

ble. See Simm ons , 501 F.3d at 624. At the same time, the limitation on appellate revie w of a denial of a downwar d depar ture doe s not preve nt this Court from “review [i ng ] the over all rea sonablene ss of sentenc es.” McBride , 43419

F.3d at 474-75, 476 n.4, 476-66. Se e als o U nit e d S tat es v . G ale , 468 F.3d 929, 937 ( 6th Cir. 2006) (explaining that this Court “ca n consider th e b ases f

or the unde rly ing r equests [for downwa rd de pa rt ur e s] w ith in t

he fr a me wo rk

of our r e vie w o f t

he re ma ini ng§ 3 55 3( a ) f

a c tor s” ); United States v. Jone s , 4 45 F .3 d 86 5, 86 8- 69 (6 th C ir . 2 00 6) (n oti ngthat McBride limit ed the holding of Pu c k e tt to situations where the de fenda nt did not proper ly argue for rea sonablene ss revie w on appeal; stating that Pu c k e tt a nd sim ila r c a se s d o “ no t pr e ve nt [a pp ellate ] re vie w o f a

de fe nd a nt’ s c la im that hi s sentenc e is excessive base d on the district court’s unr easona ble ana ly sis of the [18 U.S.C . §] 3553(a) fac tors in their totality ”; interna l quotation marks and citation omitted). Young sug g ests in his brief on a ppeal that his sentenc e is not rea sonable be cause the sentenc e “f ai l s t o p ro p er l y r e f

l e c t § 3 5 5 3 (a ) c o n s i d er at i o n s . ” A p p el l an t ’s Br

. at 2 8 (q u o t i n g Rita v. United States , 127 S. Ct . 2456, 2465 (2007))

. This Court reviews a

district court’s sentencing deter mination for re asonable ness, using an abuse- of-discr etion standard. United States v. Alex ander , 54 3 F .3 d 81 9, 82 1 (6 th Cir

. 20 08 ). Th is

re as o nablene ss inquiry

involves both procedur al and substantive c omponents. Id. at 8 2 1

- 2 2

. In assessing proce dural re asonable ness, we l o o k t o s ee if the district court pr operly calc ulated the g uid e lin e s r a ng e , tr e a te d th e g uid e lin e s a s a dv iso ry , c on sid e re d th e § 355 3( a ) fa c tor s, a nd a de qu a te ly explained the sentenc e, including an explanation f or any varia

nce f rom the g uidelines rang e. United States v. Presley , 547 F.3d 625, 629 ( 6th Cir. 2008). As for substantive r easona bleness, the ove rall conc ern is whe ther the district court imposed a sente nce suf

ficient, but not g reater t h an n ec essary , to comply with the purposes of the statutory

se nte nc ingsc he me . 1 8 U .S. C. § 35 53 (a ); Alexande r , 5 43 F .3 d at 822

. A se nte nc e is s ub sta nti ve ly

un re a so na

ble if the dis tr ic t c ourt

se le c ts a se nte nc e a rb itr a ri ly , b a se s th e se nte nc e on imp e rm iss ibl e20

fac tors, fails to consider the rele vant s entenc ing f actor s, or g ives an unre asonable amount of we ight to any pertinent fa ctor. Presley ,547 F.3d at 631. Th e dis tr ic t c ourt ’s de c isi on is pr oc e dura lly re a so na ble

. Th e c ourt

g a ve Yo un g a

ne t of fe ns e level of 32, a

nd a Criminal History Categ ory of VI , resulting in an advisory sentenc ing guidelines

r a n g e o f 2 1 0

- 2 6 2 mo n th s o n th e dr u g c o n s p ir a c y c h a r g e a n d a ma n d a to r y te n - y e a r

consec utive sentenc e on the gun char g e. The court then state d that it was “[p] utting as i de for a moment the

a dv iso ry no n- bin din g g ui del in e ra ng e . . . a

nd loo kin g a t th e oth e r f

a c tor s th a t th is C ourt

mus t consider in Sec tion 3553(a).” The c ourt also consider ed the § 3553( a) f actor s. The cour

t noted that Young had an a busive

c hil dh oo d, ha d b e e n o n h is o wn sin c e age el even , ha d b e e n d ia g no se d b y fo ur me nta l he a lth pr of e ssi on a ls w itha nti so c ia l pe rs on a lity dis or de r a

nd dy sth y mia , that he ha d s ome su

bs tanc e a bu se pr ob le ms, a nd that he ha d a GED a nd a min ima l wor k re c or d. Th e c ourt

no te d Y oung ’s imp uls ivi ty and hig h I Q. See 18 U.S.C. § 3553( a) (1 ) (d i rec ting district cour t to consider the nature a nd circ umstances of

the offe nse and the hi s t o ry and cha rac teristics of the de fenda nt). The c ourt observe d that the cr imes set forth in the Statement of F acts “ wer e ser ious and resulted in the fa c ili ta tio n o f a

dr ugc on sp ir a c y

thr ou g h [Young ’s ] c omm iss ion of a va ri e ty of low -l e ve l f

un c tio ns , and that restitution wa s not at issue.” See 18 U. S.C. § 355 3( a )( 2) (A ) (s ta tin g that se nte nc e sh ou ld ref lect the se riousness of the of fense ). The c ourt considered “d eter ring this Defenda

nt and others fr om c omm itt ingsim ila

r o ff e ns e s, ” a nd e xpre sse d c on c e rn fo r the sa fe ty of the c omm

un ity , b e c a

us e Yo u n g “ h a s a lo w to le r a n c e f o r s tr e s s w h ic h c a

u s e s h im to a c t o u t in w h a t th is Co u rt f e e ls to be a da ng e ro us mann e r. ” Th e c ourt add e d th a t be c a us e of his me nta l he a lthiss ue s, Yo un g “ pr e se nts a dang er of re cidi vism that no length of pr ison sentence can c ontrol once he is relea sed.” See 18The district cour t did not ex plicitly

consider § 3553( a)( 5) (a

ny rele vant policy

statements). 9 Howeve r, U.S.S.G. § 5K2.23 , wh i ch authoriz es cour ts to depart downwa

rd if the de fenda

nt has alre ady serve d a term of imprisonment for re levant conduc t, did not apply beca use the district cour

t deter mined that the esc ape c onviction was not rele vant conduc t. 21 U.S.C. § 3553(a)(2) (B ), (C) ( adequa te deter renc e and public sa fety

from fur ther c rimes o f t he d e f e n d a n t )

. T h e d i s t r i c tc o u rta l s o c o n s i d e r e d Y o u n g ’ s n e e d

f o r “ i n t e n s i v e i n t r o s p e c t i o n i n t h e r a p y, g roup and individual” but de cided to orde r super vised rele ase f

or l ife because it was not convince d that treatment would be ava ilable in prison for Youngor that Yo u n g wo u ld participate if it were available

. See id. § 3553(a) (2)( D). In imposing a life time of supervision, the court further or dere d that at y ear

five Youngbe g iven a c omprehe nsive psy cholog ical eva luation to assess whether he no lon g e r r e pr e se nte d a

da ng e r t o th e c omm un it y , a nd if no t, t hat su pe rv isi on te rm inate a t th a t po int

. Th e c ourt c on sid e re d Y oung ’s dia

be te s, statin g that if

he too k c a re of

him se lf , h e sh ou ld b e a

ble to complete his sentenc e. See 18 U.S.C. § 3553(a)(2) (D). The c ourt indicated that i t wo u l d recommend to the Bur eau of Prisons that Young r ece ive all allowable pr esente nce ja il tim e; that he be enrolled in a 500-h o u r re sidential drug treatment pro g r a m; th a t h e r e c e iv e a me n ta l h e a lt h a s s e s s me n t a n d me n ta l h e a lt h c o u n s e li n g a n d th a t he be

ma de e lig ibl e fo r t

he B ra ve pr og ra m or Code pr og ra

m; an d tha t the B ur e a

u of Pri so ns e xami ne his medical c ondition and prescr ibe the appr opriate die t. Th e dis tr ic t c ourt

did no t explic itl y a dd

re ss § 35 53 (a )( 5) , w hic h r e qu ir e s th e dis tr ic t c ourt to consider a

ny pertinent policy

statements. Howe ver, the court stated that it had considere d the sentenc ing obje ctives set for th in § 3553(a) pr ior to g ranting the variance

. The court explained that 9 it was g ranting a twenty -four month varianc e: First of a ll, I see, considering all of these fac tors, the advisory sentenc ing guideline rang e for Count 1, the mandatory nature of Count 2 , which is to be ser ved22

c on se c uti ve ly , an d consid e ri nga ll o f t he oth e r f

a c tor s th a t I

mus t c on sid e r i n sentenc ing unde r Section 3553(a ), Ican c onceive of one ba sis to depart downwa rd sli g ht ly fr om t he a dv iso ry

no n- bin din g se nte nc ingg uid e lin e ra ng e a nd that is thi s. Whether it’s 100 perc ent his fault, 80 p er ce n t h i s fault, 75 percent his fa ult, 50 pe rc e nt h is f

a ult , w he the r i t w a s b e c a us e of a bs olute stu

bb or nn e ss , o r s imp ly someone try ing to de fend himself and prese rve his r ights, this De fenda nt did spend a per iod of time on the drug conspirac y char g e under some dire circ umstances. He spent, exclusive of the cr edit g iven on t he escape char g e, about three y ear s and seve n mon ths on

23 -h our- a-da y lo c kd ow n w ithon ly on e ho ur

to w a lk a

bo ut a nd to exercise. That’s 43 months. The Court c onsiders that period of time to be ha rd time. The Court, there fore , will take 24 months out of that period of 43 months and reduc e the minimum on the lower end of the advisory

g uideline ra

ng e by 24 months, from 21 0 mo nth s to 1 86 mon ths , o r 1 5 y e a rs , 6 mon ths fo r w hic h th e De fe nd a nt w ill rec eive the 3 y ear s and 7 months cre dit. I n short, there is “sufficie nt evidence in the record to aff irmatively

demonstrate the court’s consideration of” the § 3553(a ) fa ctors. See J ones , 445 F.3d at 869. Th e reco rd

in t his c a se c le a rl y

e sta bli sh e s th a t th e se nte nc e imp os e d w a s su bs tanti ve ly

rea sonable. We af

ford g reat defe renc e to a dis trict court’s determination t hat a pa rticular se ntence is a pp ro pr ia te be c a

us e the se nte nc ingjud g e is i n a su pe ri or po sit ion to fi nd

fa c ts a nd jud g e the ir weig ht under § 3553(a ). Presley , 547 F.3d a t 6 3 0

. Yo u n g has a longviolent criminal history , a crim in a l h is to r

y c a te g o r y o f V I , a n d h a d b e e n d ia g n o s e d w it h a n ti s o c ia l p e r s o n a li ty d is o r d er. Cf. Alexande r , 543 F.3d at 826 (reje cting the def endant’ s arg

ument that his criminal h i s t o ry was of a

“ pe tty natur e ” that ju sti fi e d a

se nte nc e low e r t

ha n 3 60 mon ths be c a

us e the de fendan t was still a

car eer offe nder) . The district cour t car efully

examined the rele vant fa ct ors under § 3553(a) and

se nte nc e d Y oungto o ve r 3 00 mon ths in prison a nd a lif e tim e of su pe rv ise d r e le a se , d e sp ite its g ener al conc ern that “our c riminal justice sy s t em is not corre cting but rather it is puni shing exclusively

and is manufa cturing far

more c riminals . . . than it is corr ecting .” At the same time, the court g rante d Young a 24-month variance for his lockdown ti me i n addition to a one-le vel downwa rdYoung was sente nced unde r the 2002 e dition of the U.S. Sentencing Commi ssion 10 Guidelines Manua l. 23 depar ture for delay in se ntencing in his esca pe case . I n short, the rec ord demonstrates that the district court imposed “a

sentenc e sufficient, but not gr eate r than ne cessa ry , to comply ” with the purpose s of 18 U.S.C. § 3553(a). D. Rele vant Condu ct Young argues that his esca pe convic tion should have been considere d rele vant conduc t and not counted for

purposes of c alculating Young ’s criminal history

. I n support, Young claims that the main g overnme n t wi t n ess at his esca pe trial, Clennie Ma

nning, te stified that the re ason Young wanted to e scape was to murder witnesses ag ainst him a

nd his co-def

endants in the drugconspirac y

case . Under

the Guidelines, prior

sentenc es in ca ses re lat ed t o t h e offe nse of c onviction are not counted a s a prior se ntence , b u t instead dee med re levant conduc t to the instant offense unde r §1B1.3. U.S.S.G. § 4A1.2, cmt. n.1. Section 1B1.3 of the United States Sentenc ing G uidelines 10 states that re levant conduc t is “all acts and omissi ons committed, aided, abetted, counseled, . . . or willfully cause d by

the def endant; and . . . that o cc u rr ed during the c ommissi on of the off ense of conviction, . . . or in the c ourse of attempting to avoid detec tion or responsibility for that of

fense .” U.S.S.G. § 1B1.3(a )(1) . The de termi nation of whe ther a “prior se ntence ” “is pa

rt of the instant offe nse” f

or purpose s of § 4A1.2(a )(1) depends upo n whether the conduc t is severa

ble into two distinct offenses. United St ates v. Be ddow , 9 57 F .2 d 1 33 0, 13 38 (6 th C ir . 1 99 2) . “ Th is i s

nece ssarily

a fa ct-spec ific inquiry

that involves more than just a consideration of the eleme nts of the two offe nses. Fa ctors such a s temporal and geogra phical proximi ty

of the two off

enses, c ommonManning ’s statements re g ardingYoung ’s motive wer e a p p a r e n tl y memorialized in a “302,” 11 a witness intervie w form use d by the FB I . Young initially ref err ed to t his statement at the time of his g uil ty ple a , a nd la te r i n h is pr o s e letter to probation officer Uhling. 24 victims, a nd a common criminal plan or intent must also be considere d.” Id. This Court review s the district court’s fa ctual finding s under a clea rly err oneous standar d of re view. Id. At sent en ci n g t h e d istrict court found that Younghad bee n arr ested a nd held on the drug

c o n s p i r a c y c h a r g e s o n A p r i l 1 1 , 2 0 0 0 , w h i c h m a r k e d t h e e n d o f h i s i n v o l v e m e n ti n t h a tc o n s p i r a c y. Th e c ourt a lso fo un d tha t Young a tte mpt e d the e sc a pe in Sep te mbe r of 20 00 a nd c on c lud e d th a t it

was a separ ate a

nd distinct offense of

conviction and c ould not be considere d rele vant conduc t. The court re jected Ma nning’ s “testimony ” as to Young ’s m otive for attempting to esc ape be cause it “was not shown by

any other than Mr . Manning ’s testimony and wa s not a signif

icant ele ment of the

esca pe convic tion.” F ir st of a l l , a l t h o u g h M a n n i n g t e s t i f i e d a tY o u n g ’ s e s c a

p e t r i a l , h e n e v e r

t e s t i f i e d a s to Young ’s motive for wa

nting to esc ape. ( See J A 1416-48.) T he re fer ence s by the district court a

nd Young to Manning ’s “testimony ” that Young wanted to esca pe to kill witnesses mistakenly ref ers to statements Manning made in a pretria l interview stateme nt. At trial, Manning stated mere ly that 11 Young “indicate d he wanted to le ave,” and that “[h] e indicated that he didn’t wa nt to stay with us when we g ot on the g round, that he w ante d t o go h i s own way .” In any event, the district c ourt

re je c te d M a nn ing ’s “ te sti mony ” a s unc or ro bo rate d a

nd ir re le va nt t o th e jur

y ’s a sse ssm e nt o f guil t. Se e ge ne ra lly Un ite d Sta te s v . Co c k e tt , 330 F.3d 706, 711 ( 6th Cir. 2003) (noting that the district

c ourt may no t make a

fi nd ingthat di re c tly

c on fl ic ts w iththe jur

y ve rd ic t) ; United States v. Re ed , 264 F .3 d 6 40 , 6 48 (6 th C ir . 2 00 1) (h old ing that the dis tr ic t c ourt c ou ld n ot d e pa

rt be low the a pp lic a ble Guidelines ra

ng e base d on a finding that conflicte d with the jury ’s verdic t). Fur ther, the crimes we reAcc ording to Y oung , in those conver sations, Mur ry corr oborate d statement s t h at Young 12 ma de in h is m oti on , n a me ly that: –M ur ry a g re e d h e pla

y e d n o p a rt

in t he ple a pr oc e ss; –Murry ag ree d that Young asser

ted his innocenc e to Quinn and a sked that the a cce ptance of re sp on sib ili ty

lang ua g e be re mov e d f

ro m th e ple a

a g re e me nt; –Murry ag ree d that Quinn promised not to send Wanda Clark to ja il a s part of Y oung ’s plea a g re e me nt;

– M u rr y ad m i t t edt h at Yo u n g d i s t ru s t edM u rr y ’s re p re s en t at i o n o f Y o u n g; –M ur ry sa id t hat Y oung ’s ple a

pr oc e ss w a s il le g a l; –Murry said that Young tried to g et an Al for d plea, but Quinn re fused. Appellant’s B r. at 36-37. 25 five months apar

t, and without Manning ’s pre trial statement, ther e is no other link betwe en the two offe nses. I n short, the district court’s f indings we re not c lear ly

err oneous. E. Pr osecutor ial Miscondu ct Young also contends that his ple a was induced by prosec utorial misconduct and that he was not give n an ade quate he aringon this iss ue. On July 9, 2004, Young filed a pro se motion for hear ing on the issue of g overnme nt misconduc t. The motion alleg ed the same fac ts th at Yo u ng alleg ed in his motion t o withdraw his g uilty plea an d i n cluded tra

nscripts of sec retly

rec orded telephone c onversations between Jack C lark a nd Murry . On Aug ust 7, 2006, the district court

overr uled Young ’s motion. Th is a rgume nt m

us t be re je c te d. As the dis tr ic t cou rt he ld, the iss ue of

wh e the r Q uinn to ld Young to commit perjury

was e x plored at the hear ings held on May 12 and Jul y

1, 2005. Young was g ive n a fu ll o pp or

tun ity to e xplor e th e in ter a c tio n b e tw e e n Q uinn a nd Yo un g . A re ns te in c ro ssexamined Quinn, and could have ca l l ed Murry reg ardingMurry ’s conve rsation with Young ’s coconspirator

. Young did not offe r t hat evidence and cannot complain at this juncture. The district

12

c ourt he a rd the c on tr a dic tor

y te sti mony

a nd c re dit e d Q uinn’ s, re mark ingthat “ [i]t i s d i f f i c u l t t o c re dit26

the testimony

of an in d ividual who has testified, unde r oath, to mutually exclusive propositions.” See U nited S t a t es v. L awrence , 308 F.3d 623, 627 ( 6th Cir. 2002) (stating that finding s of fa ct anchor ed in a cre dibilit y assessment are ge nera lly not reve rsible on appea l, and whe re the re a re two permissible views of the evidenc e, the f act f inder’s c hoice c annot be c lear ly err oneous). Th e re c or de d c on ve rs a tio ns be tw e e n Cl a rk a nd Murr y a dd lit tle , be c a

us e , a s Y ounga dmi ts in his brief, “Murry did not comment on Young ’s claim that Quinn tol d Young to lie.” (Appe llee’s B r. a t 36 .) Ag a in, Yo un g c ou ld h a ve c a lle d M ur ry a s a wi tne ss at th os e he a ri ng s. On appeal , Young also argues that Quinn’s meeting with him in September 2003 without counsel be ing pr esent tainted the plea proce ss. Although imprudent, nothing in the rec ord shows that this intera ction neg atively impacted the plea proce ss. Young had initiated the contac t b y wr i ting Quinn. Quinn testified that while wa iting for M u rr y to arrive , Young was broug ht to the United States Attorney s office and that she “ went to expla i n t h at we br oug ht him over to talk about the letter. And that w as it.” She conf irmed that there wer e no substantive discussions. All of the plea

ne g oti a t i o n s o c c u r

r e d i n t h e p r e s e n c e o f

c o u n s e l

. F u rt h e r

m o r e , Y o u n g w a s r e f

u s i n g t o c oo pe ra te with c o u n s e l, s o it

is s o me w h a t i r o n ic f

o r h im to c la im th a t t h is li mi te d

c o n ta c t w it

h Q u inn

un de rm ine d a

ny a tto rn e y -c lie nt r e la tio ns hip , in the a bs e nc e of a ny int imi datio n by the Go ve rn me nt. Most importantly , the district c ourt cre dited Quinn’s ver sion over Young ’s, and ther e is ce rtainly no clea r err or since Young ’s version of events c ontradicts his sworn a dmissions during the cha ng e of plea c olloquy

. I n sum, the district court did not abuse its discre tion in deny ing a s moot Young’ s motion for further evidentiar

y hear ings on the alleg ed prose cutorial misconduct.27 III. Conclusi on F or the fo re g oin g re a so ns , th e jud g me nt o f t he dis tr ic t c ourt

is AF F IR M ED

.