                          NOT RECOMMENDED FOR PUBLICATION
                                  File Name: 05a0196n.06
                                   Filed: March 17, 2005

                                               No. 03-6466

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                            )
                                                     )
          Plaintiff-Appellee,                        )    ON APPEAL FROM THE UNITED
                                                     )    STATES DISTRICT COURT FOR THE
v.                                                   )    EASTERN DISTRICT OF TENNESSEE
                                                     )
KENNETH D. SANDERS,                                  )
                                                     )
          Defendant-Appellant.                       )




Before:          GUY and ROGERS, Circuit Judges; DOWD, District Judge.*

          PER CURIAM. The defendant-appellant, Kenneth D. Sanders, stands convicted on his

guilty pleas to Count 1 and Count 5 of a six-count indictment. Count 1 charged the offense of

conspiring to manufacture in excess of fifty grams of methamphetamine in violation of 21 U.S.C.

§ 846. Count 5 charged a violation of 18 U.S.C. § 924(c). By reason of his status as a career

offender, Sanders received a sentence of 262 months for Count 1 and a consecutive sentence of 60

months for the § 924(c) violation. In light of the Supreme Court’s decision in United States v.

Booker,       U.S.   , 125 S.Ct. 738 (2005), the parties have filed an agreed motion to remand for re-

sentencing. Sanders, however, also continues to argue that the district court erred in denying his

motion to withdraw his guilty plea. As we find the district court did not err in denying Sanders’



          *
           The Honorable David D. Dowd, Jr., United States District Judge for the Northern District of Ohio,
sitting by designation.
No. 03-6466
USA v. Sanders

motion to withdraw his guilty plea, we affirm his conviction; however, we vacate the sentence of

322 months and grant the joint motion to remand for re-sentencing. Our brief analysis follows.

        Sanders’ guilty plea was entered on February 5, 2004, one day after the government had filed

its factual basis for the plea, stating in relevant part as follows:

                On the evening of November 14, 2002, members of the Tennessee Highway
        Patrol Criminal Investigation Division (CID) received information concerning a
        “chop shop” in Grundy County, Tennessee. CID Agents proceeded to the residence
        in Grundy County which belonged to Darren Rankin. Upon arriving at the residence,
        officers observed the defendant, Kenneth Dale Sanders, doing something with a
        vehicle. As the officers approached they noticed Sanders attempting to conceal an
        item in his pants. A pat down was performed on Mr. Sanders and the pat down
        revealed that Sanders was wearing a shoulder holster. Inside the holster was a
        loaded Browning 9 mm semi-automatic firearm. A subsequent search of Sanders
        revealed approximately one ounce of methamphetamine. Other items found at the
        premises included: red phosphorous residue, acetone, red devil lye, brake cleaner,
        and a formula for the manufacture of methamphetamine.

                Mr. Sanders was advised of his rights, waived those rights and agreed to
        make a statement. Sanders informed agents that he had the components to a
        methamphetamine laboratory at his residence and gave permission to search his
        residence. A search of Sanders’ residence revealed the following: numerous bags
        containing red phosphorous, rubber tubing, foil, assorted glassware, funnels, and
        stained coffee filters. These are items normally associated with the manufacture of
        methamphetamine.

                Mr. Sanders was interviewed by DEA Agent David Shelton. Sanders stated
        that he had been cooking methamphetamine for at least two years. Sanders stated
        that he had manufactured methamphetamine on a number of occasions and
        occasionally would manufacture methamphetamine with other individuals. Sanders
        also stated that he had procured necessary chemicals from other individuals,
        sometimes in exchange for methamphetamine that he would “cook.”

                If this case had proceeded to trial, the United States would have offered
        evidence that the defendant has been manufacturing methamphetamine in the Grundy
        County area for the past few years. Other individuals have implicated the defendant
        in a conspiracy to manufacture methamphetamine and would have testified that they
        had assisted the defendant in the manufacture of methamphetamine in Grundy
        County, Tennessee, during the time frame listed in the conspiracy in the indictment.
        Also, if this case had proceeded to trial the United States would have proven that the
No. 03-6466
USA v. Sanders

       defendant had manufactured well in excess of fifty grams during the time frame set
       forth in the conspiracy. Finally, the United States would have offered expert
       testimony to establish that the firearm possessed by the defendant on the day of his
       arrest, November 14, 2002, was possessed in furtherance of the drug trafficking
       crimes listed in the indictment.

(R. 22).

       Sanders’ motion to withdraw his guilty plea was filed some 75 days after the guilty plea was

entered. Sanders argued that his original trial counsel should have filed a motion to suppress both

the items seized on the day of his arrest and the admissions he had made that day.

       The district court carefully followed the provisions of Fed.R.Crim. P. 11 in taking Sanders’

guilty plea. After the motion to withdraw was filed, the district court spent considerable time

entertaining oral arguments on the motion before denying the same based on careful application of

the factors outlined in United States v. Lineback, 330 F.3d 441, 443 (6th Cir. 2003).

       It is unnecessary to review the many decisions dealing with the denial of a motion to

withdraw a guilty plea. Rather, it is incumbent on the defendant to support his motion to withdraw

a guilty plea with a showing of a “fair and just reason for requesting the withdrawal,” as required

by Fed. R.Crim. P. 11(d)(2)(B). We find no published precedent for the proposition that a motion

to withdraw a guilty plea entered 75 days earlier can be supported, absent an assertion of actual

innocence, by the claim that a motion to suppress should have been filed. Moreover, numerous

unpublished decisions state the contrary. See, e.g., United States v. Jones, No. 03-1035, 74 Fed.

Appx. 664, 2003 WL 22048155, at * 3 (7th Cir. Aug. 27, 2003); United States v. Quijada, No. 01-

3048, 40 Fed. Appx. 344, 2002 WL 1784706, at *1 (8th Cir. Aug. 5, 2002) (per curiam); United

States v. Marholz, No. 95-50366, 1996 WL 285704, at * 1 (9th Cir. May 29, 1996); United States
No. 03-6466
USA v. Sanders

v. Hudak, No. 02CR853, 2003 WL 22170606, at * 5 (S.D.N.Y. Sept. 19, 2003); United States v.

Schmidt, No. 5:02CR0227, 2003 WL 22225583, at * 2-3 (N.D.N.Y. Aug. 13, 2003).

      We AFFIRM the convictions for Counts 1 and 5, and REMAND for re-sentencing.
