                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 12a0444n.06
                                                                                             FILED
                                            No. 09-5551
                                                                                        Apr 26, 2012
                            UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                 FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

v.                                                          ON APPEAL FROM THE
                                                            UNITED STATES DISTRICT
SIR JACK MATTHEWS,                                          COURT FOR THE EASTERN
                                                            DISTRICT OF TENNESSEE
          Defendant-Appellant.


                                                       /

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

          BOYCE F. MARTIN, JR., Circuit Judge. In October 2004, Sir Jack Matthews, Rejon Taylor,

and Joey Marshall were indicted for four federal crimes: carjacking resulting in death, in violation

of 18 U.S.C. § 2119(3); murder by use of a firearm during and in relation to carjacking, in violation

of 18 U.S.C. § 924(j)(l); kidnapping resulting in death, in violation of 18 U.S.C. § 1201(a)(1); and

murder by use of a firearm during and in relation to kidnapping, in violation of 18 U.S.C. § 924(j)(l).

Matthews pled guilty to all four crimes pursuant to a plea agreement. He was sentenced to life

imprisonment, the statutory minimum sentence for kidnapping resulting in death. He appeals his

sentence on five grounds, arguing: (1) the district court erred in denying his motion to withdraw his

guilty plea and in denying his motion for a hearing on the issue; (2) the United States breached the

plea agreement when it failed to move for a downward departure and when it allowed him to be

housed with a co-defendant, Taylor; (3) his sentence violates the co-conspirator attribution rule in
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Page 2
Pinkerton v. United States, 328 U.S. 640 (1946); (4) his mandatory minimum life sentence is

unconstitutional; and (5) his sentence is procedurally and substantively unreasonable. For the

following reasons, we AFFIRM the judgment of the district court.

                                  I. Withdrawal of Guilty Plea

       Pursuant to a plea agreement, Matthews pled guilty to all four crimes on November 16, 2006.

In April 2008, Matthews asked his lawyer to withdraw that plea; he eventually wrote three separate
letters requesting withdrawal of the plea. His lawyer did not move to withdraw the plea and later

moved to withdraw from representing Matthews. Matthews’s subsequent counsel moved to

withdraw the plea on November 13, 2008, nearly two years after entry of the guilty plea. The motion

was denied, as was a motion for an evidentiary hearing on the issue of plea withdrawal.

       We review for abuse of discretion the denial of a motion to withdraw a guilty plea, United

States v. Hunt, 205 F.3d 931, 936 (6th Cir. 2000). We also review for abuse of discretion the denial

of an evidentiary hearing. Alley v. Bell, 307 F.3d 380, 389 (6th Cir. 2002). A defendant in

Matthews’s position must “show a fair and just reason for requesting the withdrawal.” Fed. R. Crim.

P. 11(d)(2)(B). We balance a non-exhaustive list of seven factors in determining whether the “fair

and just” requirement has been met. United States v. Bashara, 27 F.3d 1174, 1181 (6th Cir. 1994),

superseded by guidelines amendment on other grounds, U.S.S.G. § 3B1.1. The Bashara factors, id.,

are:

       (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.

       In support of the first factor, Matthews cites United States v. Osborne, 565 F. Supp. 2d 927,

929-31 (E.D. Tenn. 2008), in which the defendant was permitted to withdraw his guilty plea one
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Page 3
hundred thirty-three days after entering it. But the time gap is far longer here, and, importantly, the

defendant in Osborne first requested that his attorney withdraw his plea two weeks after he entered

the plea. The Osborne defendant also put forth evidence calling into question whether he pled

knowingly and intelligently. Matthews’s first request to withdraw his plea came sixteen months after

he pled guilty, and he offers no evidence to indicate his plea was not knowing and intelligent. Our

Court has held that unjustified delays of far shorter length than Matthews’s are reason enough, on

their own, for a court to deny withdrawal of a guilty plea. See, e.g., United States v. Valdez, 362 F.3d
903, 913 (6th Cir. 2004) (holding that “unjustified 75-day delay, alone, supported the court’s denial

of a motion to withdraw”); United States v. Durham, 178 F.3d 796, 798-99 (6th Cir. 1999) (finding

that seventy-seven-day delay, without explanation, is too long). Matthews’s delay, standing alone,

tends to support denial of his motion to withdraw his plea.

        Matthews offers several other arguments concerning the other Bashara factors. He argues

that a communication breakdown with his attorney is a valid excuse for the tardiness of his motion.

While it is true that his former attorney did not respond to his requests to withdraw the plea, he has

not identified any such breakdown that occurred prior to his guilty plea, or even prior to April 2008,

when he first asked his lawyer to withdraw the plea, which is still a sixteen-month delay. Matthews

complains of “constant pressure” from his family to plead guilty to avoid the death penalty, but he

has not identified any evidence supporting this assertion; indeed, at his rearraignment, he specifically

denied having been pressured into his plea. Similarly, sharing a jail cell with his co-defendant and

seeing “the effect of a death penalty against a close friend,” and thus realizing that he, too, could face

the death penalty upon withdrawing his plea, is not sufficient reason to now overturn his choice to

plead guilty. He contends he didn’t know he could withdraw his plea, but three letters to his attorney

requesting his attorney to do just that prove otherwise.

        His arguments on two other Bashara factors do not fare better. First, Matthews has not

maintained his innocence throughout; he only changed his story, to one that was inconsistent with
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Page 4
the facts that formed the basis of his plea agreement, during his co-defendant’s trial in September

2008. Second, review of his plea colloquy during his rearraignment does not reveal that Matthews’s

plea was anything but knowing, intelligent, and voluntary.

        While the district court concluded that Matthews’s nature and background, and limited

exposure to the criminal justice system, are both factors that weigh in his favor, this conclusion is

not enough to overcome the delay in his motion to withdraw and the weight of the other factors. We

need not consider the final Bashara factor concerning potential prejudice to the United States
because Matthews has failed to show a “fair and just reason” for the withdrawal of his plea. United

States v. Ellis, 470 F.3d 275, 286 (6th Cir. 2006) (“[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.” (internal quotation marks omitted)).

The district court did not abuse its discretion in denying Matthews’s request to withdraw his guilty

plea.

        Likewise, the district court’s denial of Matthews’s motion for a hearing on his withdrawal

motion was not an abuse of discretion: the tardiness of his motion to withdraw is alone reason

enough to deny the withdrawal motion, see, e.g., Valdez, 362 F.3d at 913, and no factual

development at a hearing would have changed the underlying fact. Though Matthews sought the

hearing in part to develop the facts regarding a communication breakdown with his attorney over his

desire to withdraw his plea, he has not alleged circumstances beyond what we already know: that he

sought to withdraw his plea in April, 2008 but that he was unable to do so until November, 2008.

Either delay, as we have discussed, is too long for us to conclude that the district court abused its

discretion in denying either his motion for withdrawal or for a hearing.

                                  II. Breach of Plea Agreement

        Matthews argues that the United States breached the plea agreement by: (1) failing to file a

motion for a downward departure pursuant to Sentencing Guidelines section 5K1.1; and (2) allowing
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Page 5
Matthews to be housed in the same jail cell as Taylor, against whom the United States expected

Matthews to testify. We review factual findings regarding a plea agreement for clear error; alleged

breach of the agreement is a question of law reviewed de novo. United States v. Wells, 211 F.3d 988,

995 (6th Cir. 2000).

       The plea agreement provides: “The United States may bring to the Court’s attention the

nature, extent, and value of the defendant’s forthrightness. This information will be provided to the

Court so that it may be considered in determining a fair and appropriate sentence under the facts of
the case.” We have previously considered very similar language in an unpublished opinion, United

States v. Ricks, 398 F. App’x 135, 138 (6th Cir. 2010), and found that:

       [N]o case stands for the proposition that the language in [the] plea agreement—which
       fails to mention a § 5K1.1 motion at all—binds the government to recommend a
       departure. Moreover, even if we interpreted the agreement in [defendant’s] favor at
       every turn, it required the government at most to present information regarding
       [defendant’s] forthrightness to the court in some form, not necessarily by pressing for
       a downward departure.

The reasoning in Ricks applies here. The United States did not agree to move for a downward

departure and therefore did not breach the plea agreement by failing to so move.

       Matthews also argues that housing him in the same jail cell as Taylor was a breach of the plea

agreement by the United States, but he fails to explain how his housing situation was a breach.

There is no evidence that the United States prosecutors or lead investigator knew of his housing

situation and it was not until Matthews was pressed on the issue, in a series of six successive

questions during Taylor’s trial, that Matthews revealed he had been housed with Taylor. Moreover,

even if the United States did cause or allow the two co-defendants to share a jail cell, there is no

express provision of the plea agreement prohibiting the United States from housing Matthews with

Taylor. Matthews has not shown that the United States breached the plea agreement.

                                III. Alleged Pinkerton Violation

       In United States v. Williams, 894 F.2d 208, 212 (6th Cir. 1990) (citation omitted), we

explained that:
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Page 6
       Under the theory of co-conspirator liability established in Pinkerton, the overt act of
       one partner in crime is attributable to all members of the conspiracy. However, an
       overt act of one partner cannot be charged against other co-conspirators if it is not
       charged against the partner who allegedly committed the act, and the act of one
       partner cannot be charged against other co-conspirators in an inconsistent manner.
       This would be inequitable.

Matthews alleges that the district court violated the Pinkerton principle by attributing Taylor’s acts

to Matthews but not attributing those same acts to Marshall. Marshall received a sentence of ten

years and four months of imprisonment, while Matthews received a life sentence. Matthews’s
argument ignores that Pinkerton merely requires that the overt acts of one co-conspirator be

attributed to all co-conspirators, and prohibits the United States from charging the “overt act of one

partner . . . against other co-conspirators if it is not charged against the partner who allegedly

committed the act.” Id. Matthews, Taylor, and Marshall were all charged with identical offenses

in which Taylor’s conduct was attributed to each defendant. Marshall received a lesser sentence in

consideration of his substantial assistance to the United States. Matthews’s argument on this claim

does not succeed.

                    IV. Constitutional Challenges to Matthews’s Sentence

       Matthews raises several constitutional challenges to his sentence, all of which we are bound

by precedent to decide against him. Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689

(6th Cir. 1985) (“A panel of this Court cannot overrule the decision of another panel.” (quoting Gist

v. Sec’y of Health & Human Servs., 736 F.2d 352, 357-58 (6th Cir. 1984)). Constitutional challenges

to a sentence are questions of law reviewed de novo. United States v. Knipp, 963 F.2d 839, 843 (6th

Cir. 1992).

       He argues that, after United States v. Booker, 543 U.S. 220 (2005), and in light of Apprendi

v. New Jersey, 530 U.S. 466 (2000), mandatory minimum sentences are unconstitutional because

they are contrary to the sentencing objectives found in 18 U.S.C. § 3553(a). We have considered this

issue since Booker was decided and the law of this Circuit on this point is clear: “it is well-settled

that ‘[m]andatory minimum sentences, which limit a sentencing court’s discretion with regard to §
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Page 7
3553(a) factors, are constitutional.’” United States v. Wettstain, 618 F.3d 577, 591 (6th Cir. 2010)

(alteration in original) (quoting United States v. Washington, 584 F.3d 693, 700 (6th Cir. 2009)).

       Matthews argues that his life sentence is cruel and unusual punishment under the Eighth

Amendment, or that it violates the due process clause of the Fifth Amendment, when compared with

Taylor’s sentence of ten years and four months. But, “[t]his Court has agreed [with the Supreme

Court] that comparative proportionality is not constitutionally mandated.” United States v. Layne,

324 F.3d 464, 474 (6th Cir. 2003). Though Matthews only develops his constitutional arguments
with regard to the difference in sentences that he and Marshall received, we also conclude that, for

the reasons discussed above, his statutorily mandated life sentence is constitutional and violates

neither the Fifth nor the Eighth Amendments. See Wettstain, 618 F.3d at 591-92.

       Finally, Matthews argues that mandatory minimum sentences generally, and 18 U.S.C. §

3553(e) in particular, are unconstitutional because they violate the separation of powers provisions

of the Constitution by granting prosecutors sole discretion in deciding whether the court may impose

a sentence below the mandatory minimum. Again our precedent dictates the result: we have “flatly

rejected” the argument “that a statutory mandatory sentence violates the separation of powers

doctrine.” United States v. Odeneal, 517 F.3d 406, 414 (6th Cir. 2008).

             V. Procedural and Substantive Challenges to Matthews’s Sentence

       Matthews also argues that his sentence was procedurally and substantively unreasonable.

First, he challenges the calculations in the presentence report and the district court’s statement that

it lacked any discretion “at all” to sentence Matthews to less than life imprisonment. Second, he

maintains, without putting forth any real argument, that his sentence was both procedurally and

substantively unreasonable in a general sense. “The question of whether a sentence is reasonable

is determined using the abuse-of-discretion standard of review.” United States v. Carter, 510 F.3d

593, 600 (6th Cir. 2007) (citing Gall v. United States, 552 U.S. 38, 41 (2007)).
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Page 8
       Matthews’s claims are decided by our precedent. First, procedural reasonableness challenges

to a mandatory minimum sentence—here, Matthews’s challenges to the presentence report and to

the district court’s remark that he lacked discretion in choosing a sentence—are not cognizable

because, even on remand, “the district court would not have the discretion to impose a shorter term

of imprisonment.” United States v. Smith, 419 F.3d 521, 532 (6th Cir. 2005). Matthews’s challenge

to the substantive reasonableness of his sentence amounts to a conclusory statement. “[I]ssues

adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are
deemed waived.” United States v. Roach, 502 F.3d 425, 442 (6th Cir. 2007) (alteration in original)

(quoting United States v. Layne, 192 F.3d 556, 566 (6th Cir. 1999)). Thus, we deem Matthews’s

substantive unreasonableness challenge to his sentence waived.

                                               VI.

       We AFFIRM the judgment of the district court.
