                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0645n.06
                                                                                            FILED
                                            No. 09-5340
                                                                                       Aug 31, 2011
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,              )
                                       )
      Plaintiff-Appellee,              )                  ON APPEAL FROM THE
                                       )                  UNITED STATES DISTRICT
v.                                     )                  COURT FOR THE WESTERN
                                       )                  DISTRICT OF KENTUCKY
MICAH DION GASAWAY,                    )
                                       )
      Defendant-Appellant,             )                          OPINION
                                       )
_______________________________________)

       Before: CLAY and STRANCH, Circuit Judges; BARRETT, District Judge.*

       Michael R. Barrett, District Judge. Micah Dion Gasaway accepted a plea agreement and

pled guilty to six counts of possession with intent to distribute drugs and one count of being a felon

in possession of a firearm. Nearly four months later at his Sentencing Hearing, Gasaway made an

oral motion to withdraw the guilty plea. The district court judge denied that motion. Gasaway

appeals the district court’s denial of his motion to withdraw the guilty plea. For the following

reasons, AFFIRM the judgment of the district court.

                                         BACKGROUND

       A.      Factual History

       On December 1, 2006, Appellant Micah Dion Gasaway sold an undercover detective and a

police informant heroin and crack cocaine outside his residence in Louisville, Kentucky. The

       *
        The Honorable Michael R. Barrett, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 09-5340
USA v. Micah Gasaway

transaction was monitored and recorded. Shortly thereafter, Gasaway was arrested, and police

obtained and executed a search warrant for his residence. The search uncovered significant

quantities of heroin, cocaine, cocaine base, and marijuana. Police also discovered a .40 caliber

semiautomatic pistol, which Gasaway unlawfully possessed as a convicted felon. (R. 55 Presentence

Report, 2-3.)

       In a nine-count Indictment, a grand jury charged Gasaway with violating 21 U.S.C. §§

841(a)(1) and (b)(1)(A), (C), and (D), and 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and (d). (R. 1

Indictment.). Gasaway had been convicted of drug crimes before, and the United States filed a 21

U.S.C. § 851 notice to rely on those convictions at sentencing. (R. 42 Information and Notice, 1.)

       On November 5, 2008, the date his case was set for trial, Gasaway entered into a Plea

Agreement to plead guilty under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. (R.

50 Plea Agreement, 1.) In exchange for a guilty plea, the government agreed to a 180-month

sentence, followed by a 60-month supervised release, and withdrawal of its § 851 notice. (R. 50 at

5.) If the United States had not agreed to withdraw the § 851 notice, Gasaway faced a statutory

mandatory life sentence. The Presentence Report calculated his guidelines imprisonment range at

262 to 327 months. (R. 55 Presentence Report, 10.) As part of the plea agreement, Gasaway waived

his right to appeal or collaterally attack his conviction. (R. 50 at 6.)

       At the November 5, 2009, Change of Plea Hearing, Gasaway entered a guilty plea in

conformance with the Plea Agreement. The court found that Gasaway was competent, that he

understood his constitutional rights, that he entered the agreement of his own free will, and that he

understood the terms of the Plea Agreement. (R. 77 Change of Plea, 3-6.) After the government

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No. 09-5340
USA v. Micah Gasaway

summarized the evidence in support, and after Gasaway agreed that this summary was correct, he

pled guilty to each count of the indictment. (R. 77 at 7-10.) The court entered and accepted the

guilty pleas. (R. 77 at 10.)

        However, at the February 27, 2009, Sentencing Hearing, Gasaway orally moved to withdraw

his guilty plea. (R. 78 Transcript of Sentencing, 1.) Gasaway made this motion against the advice

of his attorney, but his counsel did indicate that he “went over every one of these issues” with

Gasaway “a number of times.” (R. 78 at 10.) After clarifying what the Plea Agreement called for

and reviewing his withdrawal options, the court asked for the reasons why Gasaway wanted to

withdraw his plea. (R. 78 at 6.) Gasaway’s counsel first indicated that he “wants to maintain his

innocence and go to trial on these charges.” (R. 78 at 6.) He next indicated that “he was unduly

coerced by family members, that he maintained his innocence in this case from day one, [and he]

received a lot of pressure from his family the weeks . . . prior to trial.” (R. 78 at 7.) He also stated

that Gasaway “did not want to” plead guilty at the Change of Plea Hearing and that he “has had

buyer’s remorse since then, maintains his innocence, and wants the Court to consider all those

factors.” (R. 78 at 7.) Gasaway also addressed the court saying, “I feel it’s in [my] best interests for

me to go to trial. Not only that, that’s the only way I’m going to be able to hold on to my appeal

rights. As the plea agreement is, I’ve got to give up all my appeal rights for 180 months.” (R. 78

at 10.) Gasaway also stated, “I pled guilty because I was told to do so, and that wasn’t what I wanted

to do.” (R. 78 at 10-11.) Gasaway further indicated that he had decided to withdraw his guilty plea

shortly after the Change of Plea Hearing. As he stated, “[m]y mind was already changed days after

that court date.” (R. 78 at 14.) His counsel argued that the court should excuse any delay because

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No. 09-5340
USA v. Micah Gasaway

Gasaway was held in a county jail where he did not have easy access to his lawyer. (R. 78 at 13.)

However, counsel did acknowledge that he met with Gasaway at that county jail “a number of times”

and that he “went over every one of these issues” with him. (R. 78 at 10.)

          In opposition to the motion to withdraw, counsel for the government reviewed some of the

applicable factors and argued that significant time had lapsed since the plea was accepted. (R. 78

at 12.) Nearly four months had passed -- the Change of Plea Hearing was November 5, 2008, and

the Sentencing Hearing was February 27, 2009. The government next maintained that Gasaway’s

experience weighed against accepting the motion to withdraw. It argued that Gasaway’s two prior

felony convictions, one of which resulted in a guilty plea, was an indication of his experience with

the criminal justice system. (R. 78 at 12.) The government also mentioned the factor of prejudice

to the government, but counsel made no argument on that point. (R. 78 at 13.) Overall, the

government argued that Gasaway did not present sufficient reasons to warrant granting the motion.

(R. 78 at 13.)

          In a final attempt to convince the judge, Gasaway stated, “I’m innocent of these charges, and

I would like to prove to the jury that I am innocent.” (R. 78 at 13-14.) Referring to the Change of

Plea Hearing, he also stated that his “mind was already changed days after that court date.” (R. 78

at 14.)

          In denying Gasaway’s motion to withdraw his guilty plea, the judge stated, “I’m not

convinced . . . the defendant thinks he’s -- or believes he’s innocent.” (R. 78 at 14.) In other words,

the district court stated, “I don’t believe his assertion of absolute innocence.” (R. 78 at 15.) He

concluded, “I don’t think a convincing case has been made here . . . .” (R. 78 at 15.) He went on

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No. 09-5340
USA v. Micah Gasaway

to sentence Gasaway in accordance with the terms of the plea agreement -- 180 months

imprisonment and five years supervised release. (R. 78 at 19-20.)

        B.      Procedural History

        On March 6, 2009, Gasaway filed a pro se motion to reconsider the court’s decision on his

motion to withdraw his guilty plea. (R. 61, Motion for Reconsideration.) The district court denied

this motion on April 21, 2009. (R. 72 Order.) Gasaway filed a timely notice of appeal to the United

States Court of Appeals for the Sixth Circuit on March 10, 2009. (R. 62 Notice of Appeal.)

        After Appellant filed his brief before this Court on December 18, 2009, the government filed

a motion to dismiss for lack of jurisdiction. Appellant filed a response in opposition, and Appellee

filed a reply in support. On April 15, 2010, the motions panel ordered that the government’s motion

to dismiss be referred to the merits panel.1 A new briefing schedule was set, and oral arguments

were set for July 27, 2011. However, oral arguments were later vacated, and this case was submitted

solely on the briefs.

                                            ANALYSIS

I.      GASAWAY’S MOTION FOR WITHDRAWAL OF HIS GUILTY PLEA

        A.      Standard of Review

        The Sixth Circuit reviews a district court ruling on a motion to withdraw a guilty plea filed

after the court accepted the plea for abuse of discretion. United States v. Ellis, 470 F.3d 275, 280

(6th Cir. 2006) (citing United States v. Mader, 251 F.3d 1099, 1105 (6th Cir. 2001)). A district court


        1
        As to the government’s motion to dismiss for lack of jurisdiction, we decline to address this
issue because Gasaway’s appeal lacks merit.

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No. 09-5340
USA v. Micah Gasaway

abuses its discretion where “it relies on clearly erroneous findings of fact or when it improperly

applies the law or uses an erroneous legal standard.” United States v. Spikes, 158 F.3d 913, 927 (6th

Cir. 1998). “This Court may also find an abuse of discretion if the district court ‘committed a clear

error of judgment in the conclusion it reached upon a weighing of the relevant factors.’” Ellis, 470

F.3d at 280 (quoting United States v. Schreane, 331 F.3d 548, 564 (6th Cir. 2003)).

        B.      Did the District Court Abuse its Discretion by Denying Gasaway’s Motion?

        Under Rule 11 of the Federal Rules of Criminal Procedure, “[a] defendant may withdraw a

plea of guilty . . . after the court accepts the plea, but before it imposes sentence if . . . the defendant

can show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d). “A

defendant does not have an absolute right to withdraw a guilty plea and bears the burden of proving

that he is entitled to withdraw his guilty plea.” United States v. Ellis, 470 F.3d 275, 280 (6th Cir.

2006). This Court applies a seven-factor test when determining whether a defendant presents valid

grounds for plea withdrawal. United States v. Benton, 639 F.3d 723, 727 (6th Cir. 2011). The

factors are as follows:

        (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.

Id. (quoting United States v. Bashara, 27 F.3d 1174, 1181 (6th Cir. 1994)). These factors are “a

general, non-exclusive list and no one factor is controlling.” United States v. Bazzi, 94 F.3d 1025,



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No. 09-5340
USA v. Micah Gasaway

1027 (6th Cir. 1996). It is not always necessary for a court to address each factor when deciding on

a motion to withdraw a plea. See id.

       The purpose of this test is “‘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.’”

Id. (quoting Bashara, 27 F.3d at 1181). Furthermore, “[w]hen a defendant has entered a knowing

and voluntary plea of guilty at a hearing at which he acknowledged committing the crime, the

occasion for setting aside a guilty plea should seldom arise.” Id. (internal quotations omitted).

       Gasaway argues that if the district court had properly addressed the relevant seven factors in

weighing Gasaway’s motion it would have found just cause for the withdrawal of his guilty plea.

(Appellant’s Br., 7.) In other words, Gasaway argues that the district court committed an abuse of

discretion. More specifically, he maintains that “[w]hile the government referred to some of those

factors in its argument; including the length of time between Gasaway’s plea and his motion to

withdraw, Gasaway’s previous experience with the criminal justice system and the possibility of

prejudice to the government; the court made no reference to those factors other than Gasaway’s

motion was ‘at the last second before his sentencing.’” (Appellant’s Br., 9.)

       As an initial point, Gasaway’s overall argument that the district court failed to “concentrate

on any of the seven factors set out in the weighing test” (Appellant’s Br., 9) is without merit. As a

matter of law, the seven factors are “a general, non-exclusive list,” and a court does not need to

address each factor in every case. United States v. Bazzi, 94 F.3d 1025, 1027 (6th Cir. 1996). The



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No. 09-5340
USA v. Micah Gasaway

overriding requirement is that a defendant must show “a fair and just reason for requesting the

withdrawal.” Fed. R. Crim. P. 11(d)(2)(B).

        A review of the Sentencing Hearing Transcript reveals that the district court properly

weighed nearly all of the relevant factors. First, the court considered the circumstances underlying

the guilty plea by reviewing the terms of the Plea Agreement and comparing it to what Gasaway

would face if his case went to trial. (R. 78 at 2-4.) Second, the court considered the practical

question of whether Gasaway’s prior confession at the Change of Plea Hearing could be used against

him at trial. (R. 78 at 7-9.) Third, the court considered Gasaway’s claim that family pressure

coerced him into accepting the plea. (R. 78 at 9.) Fourth, the court considered Gasaway’s statements

that he did not think it was in his best interest to plead guilty, and that he did not want to give up his

appeal rights. (R. 78 at 11.) Fifth, he considered Gasaway’s claim of actual innocence. (R. 78 at

14, 15.) Sixth, the judge considered the issue of timing, saying that Gasaway’s motion came at “the

last minute.” (R. 78 at 14, 16.) The court also heard the government’s arguments about timing,

Gasaway’s experience with the court system, and prejudice to the government. (R. 78 at 12-13.)

Furthermore, the judge gave Gasaway time to confer with his attorney off the record (R. 78 at 10),

he gave Gasaway several chances to make his case by speaking directly to the court (R. 78 at 10, 13,

15, 16), and he even went so far as to explain the policy behind his ruling (R. 78 at 16) and explain

why Gasaway’s motion was denied (R. 78 at 18.). The district court maintained throughout that

Gasaway had to present a “good reason” for why his motion should be granted. (R. 78 at 6, 9, 15,

16, 18, 19.)



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USA v. Micah Gasaway

         The district court either heard arguments on, or directly discussed, nearly all of the seven

factors. The only factor the judge did not address was the defendant’s nature and background.

Appellant’s argument that the district court failed to properly weigh the relevant factors is without

merit.

         Appellant’s specific arguments about each of the seven factors are equally unpersuasive.

Application of the factors here demonstrates that the district court did not abuse its discretion in

denying Gasaway’s motion to withdraw his guilty plea.

         1.     Timing of the Motion to Withdraw

         As to the first factor -- the amount of time that elapsed between the plea and the motion to

withdraw -- the district court considered that the motion was made at “the last minute before his

sentence.” (R. 78 at 14.) Appellant argues that “the district court chose to ignore the explicit

testimony of both Gasaway and his attorney that he had wanted to withdraw his guilty plea just days

after making it.” (Appellant’s Br., 10.)

         Gasaway entered his guilty plea on November 5, 2008, and made his motion to withdraw on

February 27, 2009 -- 114 days later. In previous cases, this Court has refused to allow plea

withdrawal when intervening periods were as brief as one month. See United States v. Benton, 639

F.3d 723, 727 (6th Cir. 2011) (collecting cases). Here, the elapsed time weighs against Gasaway.

         Appellant’s argument that Gasaway wanted to withdraw his guilty plea just days after making

it is unavailing. District courts cannot act on a defendant’s intentions alone. Holding otherwise

would open the door to all manner of after-the-fact justifications.



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USA v. Micah Gasaway

       2.      Reasons for the Failure to Withdraw Earlier

       Going to the second factor -- the presence or absence of a valid reason for the failure to move

for withdrawal earlier in the proceedings -- Appellant argues that Gasaway’s location of

confinement, Grayson County Jail, made it difficult for him to access his attorney. (Appellant’s Br.,

10.) This argument directly conflicts with the statements of Gasaway’s counsel. When Gasaway’s

attorney presented the motion to withdraw he stated, “I met with my client in Grayson County a

number of times,” and “[w]e went over every one of these issues.” (R. 78 at 10.) This testimony

reveals that Appellant’s argument here is without merit. Furthermore, the Sixth Circuit has

considered and rejected such arguments in the past. See, e.g., United States v. McIntyre, 381 F.

App’x 535, 539 (6th Cir. 2010) (holding that an unsubstantiated claim of confinement under

circumstances that prevent ready communication with a defendant’s attorney is not a valid reason

for failing to move for withdrawal earlier). Therefore, this factor weighs against Gasaway.

       3.      Assertion of Innocence

       The third factor -- whether the defendant has asserted or maintained his innocence -- at first

seems to weigh in Gasaway’s favor. At the hearing, Gasaway repeatedly asserted his innocence. (R.

78 at 6, 7, 13, 14.) However, when considering this factor, the judge stated, “I’m not convinced

[that] the defendant thinks he’s -- or believes he’s innocent,” and, “I don’t believe his assertion of

absolute innocence.” (R. 78 at 14, 15.)

       This is similar to what occurred in United States v. Thomas, 86 F.3d 1154 (4th Cir. 1996)

(unpublished table decision). Upon review of whether a district court abused its discretion in

refusing to permit the withdrawal of a guilty plea, the Thomas court considered the situation where

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No. 09-5340
USA v. Micah Gasaway

the district court did not believe that the defendant had credibly asserted his innocence. Id. at *2.

The Fourth Circuit found no fault with the district court, stating that “[t]he district court heard the

testimony first-hand; we are in no position to second-guess its assessment.” Id.; see also United

States v. Navanick, 13 F.3d 407, at *3 (10th Cir. 1993) (unpublished table decision) (finding no error

where the district court did not believe defendant’s claim of innocence).

        Furthermore, the evidence of guilt in this case works against Gasaway’s credibility. Gasaway

was recorded selling heroin and crack cocaine to an undercover police detective, and a search of his

residence uncovered significant quantities of heroin, cocaine, cocaine base, marijuana, and a .40

caliber semi-automatic pistol. Asserting actual innocence under these circumstances strains

credulity. The district court may be excused for not believing Gasaway’s claim of innocence on

these facts, especially given that he heard Gasaway’s testimony first hand. Regardless, “[b]elated

claims of innocence without more are simply insufficient to justify withdrawal of a guilty plea.”

United States v. Gregory, 41 F. App’x 785, 792 (6th Cir. 2002) (citing United States v. Spencer, 836

F.2d 235, 239 (6th Cir. 1987)). This factor weighs against Gasaway because his claim of innocence

is not credible.

        4.         Circumstances Underlying the Guilty Plea

        Appellant argues that the fourth factor -- the circumstances underlying the entry of the guilty

plea -- weighs in his favor. Gasaway maintains that he faced “enormous pressure from his family

to accept the government’s offer.” (Appellant’s Br., 11.) He implies that the retention of private

counsel was facilitated “through the assistance of his family,” and this increased the influence his

family had over him, ultimately convincing him to accept the plea offer. (Appellant’s Br., 11.)

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No. 09-5340
USA v. Micah Gasaway

Appellee counters that “Gasaway gave the district court no specifics of that ‘pressure,’” and that he

“never claimed he was threatened or extorted.” (Appellee’s Br., 21.)

        Having family members convince one to do something is not “coercion.” It may be fairly

assumed that Gasaway’s family had his best interests at heart, especially given that they retained

private counsel for him. (Appellant’s Br., 11.) In considering his best interests, Gasaway’s family

made a rational decision comparing the 180-month sentence the government offered with the

statutory mandatory life sentence he otherwise faced. The pressure they exerted to convince

Gasaway to accept this deal, especially in light of the evidence against him, cannot rightly be

classified as improper coercion.

        This conclusion accords with prior Sixth Circuit precedent. United States v. Evans, 406 F.

App’x 946 (6th Cir. 2011), considered a situation where the defendant contended that he was coerced

into pleading guilty by his attorney, his mother, and his wife. Id. at 949. In analyzing this situation,

and other factors, the Court stated that when “[f]aced with the possibility of life imprisonment if

convicted, defendant doubtless experienced considerable stress and anxiety, but this is not the sort

of ‘coercion’ that undermines the voluntariness or integrity of his plea.” Id. at 950 (citing Brady v.

United States, 397 U.S. 742, 750-51 (1970) (recognizing that the government may not produce plea

by actual or threatened physical harm or mental coercion, but rejecting claim that defendant’s desire

to accept certainty of lesser penalty is product of improper compulsion)). The family pressure that

Gasaway alleges here is not the type of coercion that makes a defendant’s acceptance of a guilty plea

involuntary.



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No. 09-5340
USA v. Micah Gasaway

        This conclusion accords with the decisions of other circuits as well. For example, in United

States v. Robinson, No. 10-2832, 2011 WL 1790063 (3rd Cir. Apr. 26, 2011), the Third Circuit held

that “family pressure to plead guilty is not a sufficient basis for granting leave to withdraw a guilty

plea.” Id. at *4; see also United States v. Schwartz, 403 F. App’x 781, 785 (3rd Cir. 2010) (holding

that “family pressure to plead guilty provides an insufficient basis for granting leave to withdraw a

plea of guilty”); United States v. Pellerito, 878 F.2d 1535, 1541 (1st Cir. 1989) (holding that family

pressure, though “probative of an accused’s motivation for pleading guilty . . . does not necessarily

show coercion, duress, or involuntariness”); United States ex rel. Brown v. LaVallee, 424 F.2d 457,

461 (2d Cir. 1970) (concluding that pressure from defendant’s lawyers and mother to plead guilty

was not coercive, but rather “sound advice”). This factor does not weigh in Appellant’s favor.

        5.      Defendant’s Nature and Background

        As to the fifth factor -- the defendant’s nature and background -- Appellant makes no specific

arguments on this point (see Appellant’s Br., 11), and the district court did not directly address this

issue (see R. 78). Thus, it is not addressed here.

        6.      Experience with the Criminal Justice System

        As to the sixth factor -- the degree to which the defendant has had prior experience with the

criminal justice system -- the government’s counsel argued this point at the Sentencing Hearing. The

government argued that Gasaway’s two prior felony convictions, one of which resulted in a guilty

plea, was an indication of his experience with the criminal justice system. (R. 78 at 12.) In his Brief,

Gasaway maintains that his only prior experience with entering guilty pleas was in state circuit court

-- he had no previous involvement with the federal system. (Appellant’s Br., 15-16.)

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USA v. Micah Gasaway

       This is a distinction without a difference. Appellant has pointed to no cases that distinguish

between state-court and federal-court experience. However, there are cases that stand for the

opposite proposition -- that there is no distinction between experience in state and federal courts.

See, e.g., United States v. McIntyre, 381 F. App’x 535, 539 (6th Cir. 2010) (considering state-court

experience with the criminal-justice system); United States v. Ward, 356 F. App’x 806, 809 (6th Cir.

2009) (considering “extensive experience with pleading in state courts”). Gasaway’s experience

with the criminal-justice system weighs against his motion to withdraw his guilty plea. See id.

       7.      Prejudice to the Government

       The final factor -- potential prejudice to the government if the motion to withdraw is granted

-- was not discussed by the district court at Gasaway’s Hearing. The government briefly mentioned

it as a factor to be considered, but it did not state how it could be prejudiced. (R. 78 at 13.) Gasaway

now argues that there was no prejudice to the government because, “it is difficult to conceive of any

such prejudice to the rescheduling of a case for trial when that case involved only a single incident

of alleged drug trafficking and a handful of police officers as witnesses.” (Appellant’s Br., 16.) This

may be true, but it does not establish a fair and just reason for allowing the withdrawal. “The

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.”

United States v. Benton, 639 F.3d 723, 729 (6th Cir. 2011) (internal quotations omitted) (quoting

Ellis, 470 F.3d at 286)). Here, because all the preceding factors either weigh against Gasaway, or

are neutral at best, the government is not required to show that it would be prejudiced by withdrawal

of the plea. See id.

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USA v. Micah Gasaway

       8.      Summary

       Because all factors are either neutral or weigh against Gasaway, the district court did not

abuse its discretion in denying Gasaway’s motion to withdraw his guilty plea. Gasaway failed to

show a fair and just reason why the district court should have granted his motion.



                                         CONCLUSION

       For the aforementioned reasons, we AFFIRM the judgment of the district court..




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