                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0324n.06

                                        Nos. 19-3193/3197

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                   FILED
                                                                             Jun 05, 2020
 UNITED STATES OF AMERICA,                                )
                                                                         DEBORAH S. HUNT, Clerk
                                                          )
        Plaintiff-Appellee,                               )
                                                          )
                                                                 ON APPEAL FROM THE
                v.                                        )
                                                                 UNITED STATES DISTRICT
                                                          )
                                                                 COURT FOR THE SOUTHERN
 PHILLIP WATKINS,                                         )
                                                                 DISTRICT OF OHIO
                                                          )
        Defendant-Appellant.                              )
                                                          )



BEFORE: MOORE, SUTTON, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Defendant Phillip Watkins pleaded guilty to conspiring to possess and distribute heroin

laced with other controlled substances which resulted in serious bodily injury and to witness

tampering. The district court sentenced him to serve three hundred months in prison. Defendant

appeals the district court’s denial of his motions to withdraw his guilty plea and for an evidentiary

hearing. We affirm.

                                                 I.

       It is well-established that “[a] defendant has no right to withdraw his guilty plea.” United

States v. Martin, 668 F.3d 787, 794 (6th Cir. 2012). Instead, he must demonstrate a “fair and just

reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). “[T]he aim of th[is] rule is

to allow a hastily entered plea made with unsure heart and confused mind to be undone, not to
Nos. 19-3193/3197, United States v. Watkins


allow a defendant ‘to make a tactical decision to enter a plea, wait several weeks, and then obtain

a withdrawal if he believes that he made a bad choice in pleading guilty.’” United States v.

Alexander, 948 F.2d 1002, 1004 (6th Cir. 1991) (per curiam) (citation omitted). We review a

district court’s denial of a motion to withdraw a guilty plea for abuse of discretion. United States

v. Benton, 639 F.3d 723, 726–27 (6th Cir. 2011).

       Whether a defendant satisfies the “fair and just reason” standard depends upon the totality

of the circumstances, which we evaluate using the following seven factors:

       (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), superseded by guidelines

amendment on other grounds, U.S.S.G. § 3B1.1. “The factors are a general, non-exclusive list and

no one factor is controlling.” United States v. Bazzi, 94 F.3d 1025, 1027 (6th Cir. 1996) (per

curiam). “The relevance of each factor will vary according to the circumstances surrounding the

original entrance of the plea as well as the motion to withdraw.” United States v. Haygood,

549 F.3d 1049, 1052 (6th Cir. 2008) (citation and internal quotation marks omitted). The district

court concluded none of the Bashara factors weighed in defendant’s favor and denied his motion.

We find no abuse of discretion in this ruling.

       Time between the plea and the motion to withdraw.             Defendant pleaded guilty on

September 7, 2017. Ninety-eight days later, on December 14, 2017, he filed a pro se letter

requesting to withdraw his plea. And following the withdrawal of counsel and a competency

hearing, his new counsel renewed that motion. Giving Watkins the benefit of the first-filed motion,


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this factor is of no help to him. See Martin, 668 F.3d at 795 (collecting cases where we have

“found shorter periods”—seventy-seven, sixty-seven, and thirty-six days—“to be excessive”).

       Reason for the delay. Watkins claims he delayed filing his motion because he was waiting

to consult with counsel (whom he criticizes for providing inadequate representation). The district

court found this excuse unpersuasive, noting several instances where defendant communicated

directly with the court during the same time period, finding curious the October 12, 2017 drafting

date (the same date the presentence report was forwarded to his counsel), and commenting that if

his complaints about counsel were true, a delay to communicate with that same counsel “makes

no sense.” This reasoning is well-supported.

       Assertion or maintenance of innocence. “When 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.” United States v. Ellis, 470 F.3d 275, 280 (6th

Cir. 2006) (citation omitted). Here, Watkins admitted that he sold controlled substances that

resulted in a drug overdose and that he subsequently planned and attempted to murder that victim

after discovering she was going to testify against him. To be sure, Watkins presented technical

challenges to his indictment before he pleaded guilty and generically expressed in his motions to

withdraw that the allegations were “untrue and exaggerated.” But upon review of the record, we

conclude that these assertions fall well short of “vigorous and repeated protestations of innocence”

our caselaw requires to support a motion to withdraw a guilty plea. United States v. Baez, 87 F.3d

805, 809 (6th Cir. 1996).

       Circumstances underlying the plea. Watkins maintains that the stresses associated with

being in solitary confinement while awaiting trial “force[d him] to take a plea [he] did not want to

take.” He asserts he pleaded guilty so that he could be released from solitary confinement because


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Nos. 19-3193/3197, United States v. Watkins


that is what his attorney purportedly told him.          And he claims his isolation limited his

communications with his attorneys and his ability to defend his case. Yet his statements to the

district court reflect the opposite. The district court asked whether “anyone made any promise or

assurance that is not in the plea agreement to persuade you to accept this agreement.” Watkins

responded in the negative.       He acknowledged he was fully satisfied with his counsel’s

representation and that he was pleading guilty on his own free will, as well as denied that he was

being forced to do so. Absent extraordinary circumstances, when the Rule 11 procedures are “fully

adequate,” we hold a defendant pleading guilty to the statements he makes at his plea hearing. See,

e.g., Baker v. United States, 781 F.2d 85, 90 (6th Cir. 1986). The district court found no reason to

set aside Watkins’ statements under oath, and we agree.1

       Defendant’s nature and background.          This factor weighs against Watkins too.         He

completed the twelfth grade, demonstrated in his pro se filings that “he is a very capable reader

and writer,” and presented to the district court as “lucid, competent[,] and attentive.” Further, we

note that the district court ordered a competency exam post-motion to withdraw, but that exam

concluded defendant at that later time “possesses a rational and factual understanding of the

proceedings against him, has the capacity to assist legal counsel in his defense, and can adequately

make decisions regarding his legal strategy.” We agree with the district court that these facts do

not support defendant’s motion to withdraw his plea; instead, they “strongly suggest[] that there is

nothing in his nature and background that would prevent him from understanding to what he was

pleading.” Martin, 668 F.3d at 796–97.




       1
         To the extent Watkins suggests the district court erred in finding him competent to plead
guilty, he has forfeited our consideration of this issue because he did not include it in his statement
of issues. United States v. Calvetti, 836 F.3d 654, 664 (6th Cir. 2016).
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Nos. 19-3193/3197, United States v. Watkins


        Defendant’s prior experience with the criminal justice system. Below, “[t]he parties

agree[d] that Watkins has significant prior contacts with the criminal justice system, including a

prior felony drug trafficking conviction.” Given this, and his proven ability to communicate pro

se, the district court concluded Watkins “demonstrate[d] a relatively high level of sophistication

regarding the judicial system,” which weighed against permitting withdrawal. Watkins does not

contest this factor.

        Potential prejudice to the government. Finally, because Watkins failed to establish any

fair and just reason to withdraw his guilty plea, the government need not establish prejudice. Ellis,

470 F.3d at 285–86. And even if it did, we are confident in the district court’s conclusion that this

factor also weighed against Watkins because “[t]here is an extremely high risk that necessary

witnesses may no longer be available now that [four] years have passed since the criminal activities

occurred. In addition, memories fade, and Watkins has already admitted to attempting to influence

a witness’ availability.”

        For these reasons, the district court did not abuse its discretion when it denied Watkins’

motion to withdraw his guilty plea.

                                                 II.

        After the district court denied defendant’s motion to withdraw, he moved for

reconsideration. Included in his motion was a perfunctory and unsupported request for an

evidentiary hearing. The district court summarily denied it. Whether to conduct an evidentiary

hearing to evaluate the merits of a motion to withdraw falls within “the wide discretion of the

district court, which we review for abuse of discretion.” United States v. Woods, 554 F.3d 611,

613 (6th Cir. 2009).




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       In challenging that denial on appeal, Watkins raises new grounds for why the district court

should have held an evidentiary hearing (relating in large part to the tribulations of solitary

confinement). But having failed to present these to the district court, we see no reason to condone

his attempt to raise a “better case fashioned after a district court’s unfavorable order.” Estate of

Barney v. PNC Bank, 714 F.3d 920, 925 (6th Cir. 2013). Moreover, it is unmeritorious; the district

court did not abuse its discretion by denying defendant’s unsupported and belated request for an

evidentiary hearing.

                                                III.

       For these reasons, the district court did not abuse its discretion when it denied defendant’s

motions to withdraw his guilty plea and for an evidentiary hearing.




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