                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0355n.06

                                           No. 08-5651                                  FILED
                                                                                    Jun 08, 2010
                          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 COURT FOR THE
KARL GENE KLICKNER,                              )   EASTERN DISTRICT OF KENTUCKY
                                                 )
       Defendant-Appellant.                      )



       Before: MERRITT, COOK, and KETHLEDGE, Circuit Judges.


       COOK, Circuit Judge. Karl Klickner appeals the district court’s judgment sentencing him

to 190 months’ imprisonment following his guilty plea and conviction for receipt of child

pornography. Klickner argues that the district court abused its discretion by refusing to allow him

to withdraw his guilty plea and violated his Sixth Amendment rights by engaging in judicial fact-

finding at sentencing. Finding no merit in Klickner’s arguments, we affirm.


                                                I.


       A grand jury indicted Klickner on nine counts of receiving child pornography in violation

of 18 U.S.C. § 2252(a)(2), one count of possession of child pornography in violation of 18 U.S.C.

§ 2252(a)(4)(B), and one count of attempting to distribute child pornography in violation of 18

U.S.C. § 2252(b)(1).
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United States v. Klickner


       On the morning of trial, February 13, 2008, Klickner pled guilty (without a written

agreement) to one count of receipt of child pornography. The court placed him under oath,

established his competency, and accepted his guilty plea as knowing and voluntary. As part of the

plea agreement, the government orally agreed to support a three-level reduction in Klickner’s

adjusted offense level for his acceptance of responsibility and not to object to a sentence at the low

end of the applicable guidelines range. The court informed Klickner that his conviction carried a

potential sentence of up to twenty years’ imprisonment and that it would determine his ultimate

sentence using the sentencing guidelines, taking into account the nature of his offense and his

criminal history. The court also advised Klickner that his guilty plea remained binding even if the

court selected a sentence more severe than he expected, and Klickner expressly indicated that he

understood.


       The presentence report (PSR) prepared by the probation office recommended applying a two-

level enhancement pursuant to USSG § 2G2.2(b)(2) because the offense involved minors under the

age of twelve, a five-level enhancement pursuant to § 2G2.2(b)(3)(C) because Klickner showed

pornographic images to a fifteen year-old boy, and a four-level enhancement pursuant to USSG

§ 2G2.2(b)(4) because the images involved violent conduct. The PSR placed Klickner in criminal

history category V based on seven prior convictions (three felonies and four misdemeanors) between

1989 and 2006. With a total offense level of 36 and a criminal history category V, the PSR

suggested a guidelines range of 292 to 365 months, but the statutory maximum penalty capped

Klickner’s exposure at 240 months.

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        On April 21, 2008, Klickner moved to withdraw his guilty plea, claiming that he entered it

expecting to receive a sentence of approximately 7-8 years, which he contends his counsel

represented to him based on misleading input from the probation officer and the prosecution.

Klickner maintains that when he pled guilty he was not informed of the potential sentencing

enhancements the government intended to seek or of the impact of his criminal history would have

on the guidelines calculation. The district court denied the motion.


        At sentencing, Klickner objected to two of the enhancements, challenging the sufficiency of

the supporting proof. The district court sustained his objection to the five-level enhancement, but

found that the probation officer’s description of the images supported applying the two-level

enhancement for material involving children under twelve. Klickner did not object to the four-level

enhancement for violent images. After resolving Klickner’s objections, the court’s guidelines

calculation yielded a range of 168 to 210 months. Klickner requested a sentence at the low end of

the range, and after considering the § 3553(a) factors, the court sentenced him to 190 months’

imprisonment. This timely appeal followed.


                                                    II.


        We review the denial of a motion to withdraw a guilty plea under Federal Rule of Criminal

Procedure 11(d) for abuse of discretion, United States v. Dixon, 479 F.3d 431, 436 (6th Cir. 2007),

reversing only if the district court “relies on clearly erroneous findings of fact, . . . improperly applies

the law or uses an erroneous legal standard,” United States v. Lineback, 330 F.3d 441, 443 (6th Cir.

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United States v. Klickner


2003) (citing United States v. Spikes, 158 F.3d 913, 927 (6th Cir. 1998)). The defendant bears the

burden of demonstrating appropriate grounds for granting a motion to withdraw a guilty plea. Dixon,

479 F.3d at 436 (citing United States v. Triplett, 828 F.2d 1195, 1197 (6th Cir. 1987)).


       Federal Rule of Criminal Procedure 11(d) requires a defendant seeking to withdraw a guilty

plea prior to sentencing to “show a fair and just reason for requesting the withdrawal.” Fed. R. Crim.

P. 11(d)(2)(B). This rule is designed “‘to allow a hastily entered plea made with unsure heart and

confused mind to be undone, not to allow a defendant to make a tactical decision to enter a plea, wait

several weeks, and then obtain a withdrawal if he believes he made a bad choice in pleading guilty.’”

United States v. Ellis, 470 F.3d 275, 280–81 (6th Cir. 2006) (quoting United States v. Alexander, 948

F.2d 1002, 1004 (6th Cir. 1991)). We review a number of nonexclusive factors under Rule 11(d)’s

standard:


       (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), abrogated on other grounds by statute

as recognized in United States v. Caseslorente, 220 F.3d 727, 734 (6th Cir. 2000). The relevance

of each factor “var[ies] according to the ‘circumstances surrounding the original entrance of the plea



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United States v. Klickner


as well as the motion to withdraw.’” United States v. Haygood, 549 F.3d 1049, 1052 (6th Cir. 2008)

(quoting Triplett, 828 F.2d at 1197).


       Klickner argues that he maintained his innocence throughout the proceedings, and that his

guilty plea was predicated on erroneous representations concerning the length of his sentence. As

a consequence, he asserts, his plea was not entered knowingly and voluntarily, and therefore the

district court abused its discretion in refusing to allow him to withdraw it. We disagree.


       Although the probation officer discussed general guidelines ranges with Klickner and his

counsel, the government never agreed to any specific range, but only agreed not to object to a

sentence at the low end of the guidelines range, whatever the range turned out to be. At the time of

these discussions, the probation office had not yet prepared Klickner’s PSR, which, as it turned out,

placed Klickner in criminal history category V and, as a result, drastically increased his applicable

guidelines range. When he entered his plea, the district court expressly informed Klickner that he

faced up to twenty years in prison and that the court would use the sentencing guidelines—which

took into account the nature of his offense and his criminal history—to determine his sentence.

Klickner indicated he understood and wished to go forward with his plea. And when asked whether

he was satisfied with his counsel’s performance and the amount of time he received to consult with

both his attorney and his wife, he responded in the affirmative. Thus, we reject Klickner’s efforts

to characterize his guilty plea as anything but knowing and voluntary.




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       The record belies Klickner’s assertion that he maintained his innocence throughout the

proceedings. At the plea hearing, Klickner readily acknowledged his guilt. Then, from the date of

his plea until he received his presentence report, he remained completely silent. Only after learning

that his extensive criminal past placed him in category V did he seek to withdraw his plea—sixty-

eight days after pleading guilty. Klickner fails to offer a legitimate explanation for the delay, and

we have upheld denials in reliance on much shorter unjustified delays between the entry of a guilty

plea and a motion to withdraw. See Dixon, 479 F.3d at 436 (collecting cases and noting that the

court has upheld denials in reliance on delays as short as thirty-five days). Moreover, Klickner’s

criminal history—which includes three felony convictions—evinces considerable familiarity with

the criminal justice system, and thus weighs against allowing him to withdraw his guilty plea.

Because the relevant factors weigh against allowing Klickner to withdraw his guilty plea, we discern

no abuse of discretion in the district court’s denial of his motion.


       And we swiftly dispense with Klickner’s second argument—that judicial fact-finding at

sentencing violated his Sixth Amendment rights—which our precedents clearly foreclose. See, e.g.,

United States v. Sexton, 512 F.3d 326, 329–30 (6th Cir. 2008) (district court did not violate

defendants’ Sixth Amendment rights by making factual findings by a preponderance of the evidence

in determining sentencing ranges). The description of the images contained in the PSR—which

Klickner did nothing to refute—supported the court’s preponderance-based factual finding that

resulted in its application of the enhancement. See United States v. Geerken, 506 F.3d 461, 467 (6th



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Cir. 2007) (“When a defendant fails to produce any evidence to contradict facts set forth in the PSR,

a district court is entitled to rely on those facts when sentencing the defendant.”).


                                                 III.


       For these reasons, we affirm.




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