                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0037n.06
                           Filed: January 11, 2006

                                           No. 04-6380

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )       ON APPEAL FROM THE
       Plaintiff-Appellee,                               )       UNITED STATES DISTRICT
                                                         )       COURT FOR THE WESTERN
v.                                                       )       DISTRICT OF TENNESSEE
                                                         )
ANDRE DESHAWN TERRY,                                     )                          OPINION
                                                         )
       Defendant-Appellant.                              )



BEFORE:        RYAN and COLE, Circuit Judges; SARGUS, United States District Judge*

       R. GUY COLE, JR., Circuit Judge. Appellant Andre Deshawn Terry pleaded guilty to

being a felon in possession of a firearm. He appeals the district court’s denial of his motion to

withdraw his guilty plea and his sentence under United States v. Booker, --- U.S. --- 124 S.Ct. 738

(2005). For the following reasons, we AFFIRM Terry’s conviction, VACATE Terry’s sentence,

and REMAND for resentencing.

                                                I.

       Terry was a suspect in a September 21, 2003, shooting in which he allegedly used a .38

caliber firearm. On September 23, 2003, the Jackson, Tennessee Police Department was informed

that Terry was hiding in an apartment. The police made a forcible entry into the apartment and



       *
          The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern
District of Ohio, sitting by designation.
No. 04-6380
United States v. Terry

found Terry hiding in a secret compartment in a closet. The officers found one 7.62 mm caliber rifle

in the hiding compartment while apprehending Terry, and they found a second 7.62 mm caliber rifle,

and corresponding ammunition, after obtaining a warrant to search the apartment.

       On December 15, 2003, Terry was indicted for being a felon in possession of a firearm —

the two rifles the police found in the apartment where Terry was hiding — in violation of 18 U.S.C.

§ 922(g). On May 10, 2004, Terry pleaded guilty as charged. During the change of plea colloquy,

Terry admitted his guilt and acknowledged that he was satisfied with his attorney. Sentencing was

originally set for August 6; on August 3 it was rescheduled to August 27. On August 25, 2004,

Terry’s attorney, Clayton Mayo, moved to withdraw as counsel. The district court granted Mayo’s

motion that day.

       On August 31, 2004, Terry’s current counsel, Danny Ellis, was appointed. On September

8, 2004, Terry filed a motion to withdraw his guilty plea. On September 16, 2004, the district court

denied Terry’s motion. On October 22, 2004, Terry was sentenced to 108 months imprisonment,

2 years supervised release, and a $100 special assessment.

                                                II.

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

States v. Lineback, 330 F.3d 441, 443 (6th Cir. 2003) (citing United States v. Bazzi, 94 F.3d 1025,

1027 (6th Cir. 1996)). “A district court abuses its discretion ‘when it relies on clearly erroneous

findings of fact, or when it improperly applies the law or uses an erroneous legal standard.’” Id.

(quoting United States v. Spikes, 158 F.3d 913, 927 (6th Cir. 1998)).




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No. 04-6380
United States v. Terry

       When a defendant seeks to withdraw a guilty plea after the court has accepted the plea but

before sentencing, a defendant must provide a “fair and just” reason for the withdrawal. Fed. R.

Crim. P. 11(d)(2). In United States v. Bashara, 27 F.3d 1174 (6th Cir. 1994), this Court enumerated

several factors a district court may assess in evaluating whether a defendant has established a “fair

and just” reason for withdrawal, namely: 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 failure to move for

withdrawal earlier in the proceeding; 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.

Bashara, 27 F.3d at 1180-81.

       The amount of time between when Terry pleaded guilty and when he moved to withdraw his

plea, 121 days, was excessive. The reason Terry claims that he did not move to withdraw his guilty

plea earlier is because his counsel was inadequate and should have moved to withdraw the plea

sooner. Terry has never asserted that he was innocent; rather, he has stated that his prior attorney

should have moved to suppress the evidence of the firearms before allowing Terry to plead guilty.

In his change-of-plea colloquy, Terry clearly admitted to the crime of being a felon in possession

of a firearm and his satisfaction with Mayo’s representation. Terry has not shown any circumstances

underlying the guilty plea that would evidence a fair and just reason to allow him to withdraw the

plea. Terry has extensive experience with the criminal justice system. Finally, it is irrelevant

whether the United States would be prejudiced because Terry has not shown a fair and just reason

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No. 04-6380
United States v. Terry

to allow his guilty plea to be withdrawn. United States v. Triplett, 828 F.2d 1195, 1198 (6th Cir.

1987).

         An analysis of the Bashara factors clearly indicates that the district court did not abuse its

discretion in refusing to allow Terry to withdraw his guilty plea. To the extent that Terry is arguing

that he should be permitted to withdraw his guilty plea because he was inadequately represented by

trial counsel, he should raise any such claims under 28 U.S.C. § 2255. United States v. Wunder, 919

F.2d 34, 37 (6th Cir. 1990). Accordingly, we AFFIRM the district court’s denial of Terry’s motion

to withdraw his guilty plea.

                                                  III.

         In sentencing Terry, the district court treated the sentencing guidelines as mandatory.

Therefore, as the Government concedes, remand for resentencing is proper. Booker, 125 S. Ct. at

766–69; United States v. Barnett, 398 F.3d 516, 529 (6th Cir. 2005). Consequently, we VACATE

Terry’s sentence and REMAND for resentencing.

                                                  IV.

         For the foregoing reasons, we hereby AFFIRM the district court’s denial of Terry’s motion

to withdraw his guilty plea, VACATE Terry’s sentence, and REMAND for resentencing.




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