United States District Court, E.D. Michigan, Southern Division
States Magistrate Judge David R. Grand
OPINION AND ORDER DENYING DEFENDANT'S MOTIONTO
WITHDRAW GUILTY PLEA [#69]
Gershwin A. Drain United States District Court Judge
February 8, 2018, Defendant Christopher Davis pled guilty to
Possession with Intent to Distribute Cocaine Base, in
violation of 21 U.S.C. § 841(a)(1). Dkt. No. 54. Because
Defendant had a prior state drug conviction, he faced a
statutory maximum sentence of 30 years and a sentencing
guidelines range of 188 to 235 months. However, under his
Rule 11(c)(1)(C) plea agreement, Defendant and the Government
stipulated that the appropriate sentence in this case would
be 228 months. See Id. at p. 4 (Pg. ID 147).
Defendant still awaits sentencing.
December 21, 2018, Congress passed the First Step Act, which
redefined what constituted a prior drug offense. Under the
Act, Defendant's state conviction no longer qualifies as
a “serious drug offense.” Consequently, the
statutory maximum penalty for his federal conviction is now
20 years and his sentencing guidelines range is 151 to 188
months. Defendant has filed the instant Motion to withdraw
his guilty plea in light of these favorable changes.
before the Court is Defendant's MotionTaylor & Sons,
Inc. et al to Withdraw Guilty Plea. Dkt. No. 69. A hearing on
the Motion was held on September 12, 2019. For the reasons
set forth below, the Court will DENY the Motion [#69].
argues that because his plea agreement was based upon
sentencing consequences which have subsequently changed, such
that the agreement can no longer be performed, he has
provided a fair and just reason to withdraw his guilty plea
under Federal Rule of Criminal Procedure 11(d)(2)(B).
See Dkt. No. 69, p. 4 (Pg. ID 223). The Court will
is well settled that the withdrawal of a guilty plea prior to
sentencing is not an absolute right but is a matter within
the broad discretion of the district court.” United
States v. Spencer, 836 F.2d 236, 238 (6th Cir. 1987)
(quoting United States v. Kirkland, 578 F.2d 170,
172 (6th Cir. 1978)). To prevail on such a motion, the
defendant must “show a fair and just reason for
requesting the withdrawal.” Fed. R. Crim. P.
11(d)(2)(B). The Sixth Circuit has identified a non-exclusive
list of factors that courts should consider when determining
whether a defendant has met his burden:
(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. Ellis, 470 F.3d 275, 281 (6th Cir.
2006). Importantly, no single factor controls. United
States v. Haygood, 549 F.3d 1049, 1052 (6th Cir. 2008).
Rather, “[t]he relevance of each factor will vary
according to the ‘circumstances surrounding the
original entrance of the plea as well as the motion to
withdraw.'” Id. (quoting United States
v. Triplett, 828 F.2d 1195, 1197 (6th Cir. 1987)).
none of the Ellis factors weigh in favor of relief.
See 470 F.3d at 281. With respect to the first
factor -- the amount of time between the plea and the motion
to withdraw -- Defendant waited over fourteen months to file
the instant Motion. See Dkt. No. 54; Dkt. No. 69.
Even considering only the time between the passage of the
First Step Act and now, this still amounts to a four-month
gap. The Sixth Circuit has affirmed decisions to deny motions
to withdraw guilty pleas on the basis of far shorter delays.
See, e.g., United States v. Durham, 178
F.3d 796, 799 (6th Cir. 1999) (77-day delay); United
States v. Baez, 87 F.3d 805, 808 (6th Cir. 1996) (67-
day delay); United States v. Goldberg, 862 F.2d 101,
104 (6th Cir. 1988) (55-day delay); United States v.
Spencer, 836 F.2d 236, 239 (6th Cir. 1987) (5-week
the second factor -- a valid reason for failing to move for
withdrawal earlier -- Defendant suggests that the delay was
caused by the uncertainty surrounding the First Step Act.
Undoubtedly, this justifies some of Defendant's
tardiness. But this does not excuse a four-month delay.
See United States v. Benton, 639 F.3d 723, 727-28
(6th Cir. 2011) (“Though we recognize that defense
counsel may have had to contend with competing demands on her
time and resources, we cannot excuse a delay of more than
three months in this case. Once Benton and his counsel became
aware of new developments that might be relevant to his case,
it was incumbent upon them to take action within a reasonable
period of time. Therefore, while Benton may have had a valid
reason for not filing the motion immediately upon learning of
the Supreme Court's decision in Gant, he does
not present a valid excuse for the extended length of the
third factor -- whether the defendant has asserted or
maintained his innocence -- also weighs against relief. Here,
Defendant has conceded his guilt. See United States v.
Hasan, No. 1:15CR188, 2016 WL 3854460, at *4 (N.D. Ohio
July 15, 2016) (“The fact that he has not maintained
his innocence, and has, in fact, acknowledged his guilt, also