           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0084P (6th Cir.)
                    File Name: 00a0084p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                             ;
                              
 UNITED STATES OF AMERICA,
                              
           Plaintiff-Appellee,
                              
                              
                                             Nos. 98-1047/1762
          v.
                              
                               >
 DAVID CHARLES HUNT,          
        Defendant-Appellant. 1

          Appeal from the United States District Court
          for the Eastern District of Michigan at Flint.
         No. 95-50041—Paul V. Gadola, District Judge.
                  Argued: December 6, 1999
               Decided and Filed: March 9, 2000
   Before: COLE and GILMAN, Circuit Judges; CARR,
                   District Judge.*
                      _________________
                           COUNSEL
ARGUED: Kenneth R. Sasse, FEDERAL DEFENDER’S
OFFICE, Flint, Michigan, for Appellant. Mark C. Jones,
ASSISTANT UNITED STATES ATTORNEY, Flint,

    *
     The Honorable James G. Carr, United States District Judge for the
Northern District of Ohio, sitting by designation.

                                  1
2    United States v. Hunt                 Nos. 98-1047/1762       Nos. 98-1047/1762                  United States v. Hunt     11

Michigan, for Appellee. ON BRIEF: Kenneth R. Sasse,                States v. Pluta, 144 F.3d 968, 973 (6th Cir. 1998). “If a
FEDERAL DEFENDER’S OFFICE, Flint, Michigan, for                    motion to a withdraw a plea of guilty or nolo contendere is
Appellant. Mark C. Jones, ASSISTANT UNITED STATES                  made before sentence is imposed, the court may permit the
ATTORNEY, Flint, Michigan, for Appellee.                           plea to be withdrawn if the defendant shows any fair and just
                                                                   reason.” Fed. R. Crim. Pro. 32(e). The defendant has the
                    _________________                              burden of proving that withdrawal of the plea is justified.
                                                                   United States v. Baez, 87 F.3d 805, 808 (6th Cir. 1996). In
                        OPINION                                    deciding whether a defendant has stated a fair and just reason
                    _________________                              to allow withdrawal of a plea, the factors to be considered are:
   JAMES G. CARR, District Judge. This is an appeal from             1) the amount of time that elapsed between the plea and
a criminal sentence imposed on defendant by the United               the motion to withdraw it; 2) the presence (or absence) of
States District Court for the Eastern District of Michigan.          a valid reason for the failure to move for withdrawal
Defendant pled guilty to conspiracy to distribute cocaine,           earlier in the proceedings; 3) whether the defendant has
distribution of cocaine and felony possession of a firearm.          asserted or maintained his innocence; 4) the
(J.A. at 26).                                                        circumstances underlying the entry of the guilty plea; 5)
                                                                     the defendant’s nature and background; 6) the degree to
  Before sentencing, defendant moved for an in camera                which the defendant has had prior experience with the
hearing to determine whether, as he claimed, the government          criminal justice system; and 7) potential prejudice to the
violated his plea agreement’s written terms. (J.A. at 36-44).        government if the motion to withdraw is granted.
Specifically, defendant alleged that the government breached
his plea agreement by failing to: 1) release him on bond so        United States v. Bashara, 27 F.3d 1174, 1181 (6th Cir. 1994).
that he could actively assist the government in other
investigations, 2) interview him a series of times (i.e., more       The district court applied the preceding factors and
than twice), thereby thwarting his ability to cooperate with       determined, within its discretion, that withdrawal was
law enforcement officials, and 3) administer a lie detector test   inappropriate. (J.A. at 84-85). The district court did not
to determine if he provided truthful information during two        abuse its discretion given: 1) the length of time of time
interviews. In the alternative to a hearing, defendant             between entry of defendant’s plea and his motion for
requested leave to withdraw his guilty plea. (Id.).                withdrawal (almost one year), 2) the absence of any breach of
                                                                   the plea agreement, 3) defendant’s confession of guilt, 4) the
  The district court refused to hold a hearing, finding that the   careful reading of the plea agreement’s terms to defendant at
plain and unambiguous terms of the plea agreement had not          the plea hearing, and 5) defendant’s criminal history. (Id.).
been breached. (J.A. at 79-82). Further, the district court
would not allow defendant to withdraw his plea because he                                CONCLUSION
had not satisfied his burden of withdrawal under Rule 32 of
the Federal Rules of Criminal Procedure. (J.A. at 83-85).             For the foregoing reasons, the opinion of the district court
                                                                   is AFFIRMED.
  In a motion for reconsideration, defendant raised a new
basis for a hearing. He argued that the government made oral
promises to him while negotiating the plea agreement. Those
promises, he claimed, had not been fulfilled. The district
10   United States v. Hunt                 Nos. 98-1047/1762       Nos. 98-1047/1762                  United States v. Hunt       3

   Further, bad faith on the part of the government is not the     court denied defendant’s motion for reconsideration because,
standard of review in downward departure cases. We                 among other things, the plea agreement contained an
previously have held that a hearing is not needed unless the       integration clause, restricting its terms to those written within
government’s refusal to recommend a downward departure             its four corners. (J.A. at 100).
“was based on an unconstitutional motive.” United States v.
Bagnoli, 7 F.3d 90, 92 (6th Cir. 1993) (citing Wade v. United         Defendant argues here that the district court erred in not
States, 504 U.S. 181 (1992)). No threshold showing of              allowing a hearing. He claims a hearing was necessary to: 1)
unconstitutional motive has been made here.                        determine whether the government breached its oral promises;
                                                                   2) assess whether the government failed to provide him with
   Indeed, the district court demonstrated why the government      a good faith opportunity to cooperate; and 3) establish
had fully complied with the terms of the plea agreement.           whether his guilty plea was valid. (Defendant’s Brief at 11-
(J.A. at 79-82). In its order, the district court noted that the   17).
plain language of the plea agreement made clear that the
government did not have any obligation to release defendant          For the following reasons, we AFFIRM the judgment of the
on bond, interview defendant any set number of times, or           district court.
administer a lie detector test. (J.A. at 79-82). A review of the
plea agreement confirms this. (J.A. at 56-66). Thus, it was                              BACKGROUND
permissible to interview defendant twice for his cooperation,
and, when the government concluded substantial assistance             A grand jury in the Eastern District of Michigan returned an
was not forthcoming, decline to recommend a downward               indictment against defendant for seven counts of conspiracy
departure. (J.A. at 62). Nothing about the government’s            to distribute cocaine, distribution of cocaine, use of a firearm
conduct raises constitutional concerns.                            during the commission of a drug offense, possession of a
                                                                   firearm by a felon, and possession of a firearm with an
                     III. Plea Validity                            obliterated serial number. (J.A. at 18-24). On May 28, 1996,
                                                                   defendant pled guilty to three of the seven counts and
  Defendant argues that the district court should have held a      forfeited two vehicles as part of his Rule 11 plea agreement.
hearing to consider whether he entered into his guilty plea        (J.A. at 26).
voluntarily and, thus, validly.
                                                                     Defendant’s plea agreement contains three clauses that are
   Defendant, however, never moved the district court to hold      relevant here. First, it contains an integration clause
a hearing to determine if his plea was valid. Rather, he asked,    restricting its terms to those written within its four corners:
as an alternative to a hearing, that his plea be withdrawn
based on its alleged invalidity. That alternative request was        No Other Terms. This agreement incorporates the
denied because defendant failed to satisfy his burden of             complete understanding between the parties, and no other
withdrawal under Rule 32 of the Federal Rules of Criminal            promises have been made by the government to the
Procedure. (J.A. at 83-85). Thus, the only question                  defendant or to the attorney for the defendant.
appropriately presented is whether the district court
misapplied Rule 32.                                                (J.A. at 34). Second, the plea agreement contains a
                                                                   cooperation clause, obligating defendant to assist the
  Denial of a defendant’s motion to withdraw his guilty plea       government in other investigations:
under Rule 32 is reviewed for an abuse of discretion. United
4      United States v. Hunt                Nos. 98-1047/1762     Nos. 98-1047/1762                  United States v. Hunt       9

    Truthful Information and Assistance.           Defendant      reliance on the written plea agreement. Id. But we
    promises to provide truthful and complete information to      emphasized that an integration clause “would ordinarily
    the United States Attorney’s office and to other law          prevent any assertion that there were side deals or promises.”
    enforcement agencies, including a full debriefing and         Id. (emphasis added).
    truthful testimony at all proceedings, . . . . Defendant
    agrees to be available for interviews in preparation of all      Here, there are no circumstances justifying a departure from
    testimony. Defendant further agrees to submit, upon           the ordinary rule set forth in Peavy. Unlike the defendant in
    request, to government- administered polygraph                Peavy, defendant in this case has filed no affidavit attesting to
    examinations to verify defendant’s full and truthful          a side agreement with the government. And the government,
    testimony.                                                    though it has filed no supporting affidavits of its own, denies
                                                                  that any such oral agreement exists. (Government’s Brief at
(J.A. at 30-31). Third, the plea agreement contains a clause      11) (“[T]here were no agreements whatsoever which were not
requiring the government to inform the district court of          contained in the Rule 11 [plea agreement].”). Given this
defendant’s substantial assistance in other investigations and,   denial, the integration clause, and defendant’s failure to file
if appropriate, recommend a downward departure from the           an affidavit, the district court was correct in finding that no
sentencing guidelines:                                            hearing was necessary.
    Substantial Assistance Determination.         Upon the           Defendant attempts to distinguish Peavy on the basis that
    government’s determination that defendant’s cooperation       it was a post-sentencing challenge to a plea agreement
    amounts to substantial assistance in the investigation of     pursuant to 28 U.S.C. § 2255. (Defendant’s Brief at 12-13).
    others, the government will advise the court of the           But the fact that the challenge here occurred before sentencing
    defendant’s cooperation at sentencing, and, if                is unremarkable. Once the government enters into a Rule 11
    appropriate, request the court to depart downward from        plea agreement containing an integration clause, the result
    the applicable sentencing range. The government               ordinarily should be final and immune from collateral attack,
    reserves the right to make the sole determination as to       whether such attack occurs before or after sentencing.
    whether and when defendant has provided substantial
    assistance.                                                                           II. Bad Faith
(J.A. at 31).                                                       Defendant claims the government frustrated his ability to
                                                                  cooperate and, thus, qualify for a downward departure from
   On May 29, 1996, the district court held a plea hearing in     the sentencing guidelines. He further alleges that the
accordance with Rule 11. At the hearing, the district court       government acted in bad faith, which he was not given an
reviewed the details of the plea agreement with defendant.        opportunity to prove at a hearing. (Defendant’s Brief at 14-
(J.A. at 115-119). Defendant was asked whether he                 16).
understood that the plea agreement was a fully integrated
document:                                                           Defendant’s allegation of bad faith is raised for the first
                                                                  time on appeal. He never alleged bad faith to the district
    THE COURT: Paragraph nine says this is a complete             court. Rather, he simply maintained that the government
    Agreement between yourself and the Government, and            violated the plea agreement, without making any claim that
    there have been no other promises made to you. Do you         the government was improperly motivated. Defendant’s
    understand that is in this document?                          argument is fatally flawed for this reason alone.
8    United States v. Hunt                 Nos. 98-1047/1762       Nos. 98-1047/1762                 United States v. Hunt        5

                      I. Oral Promises                               DEFENDANT: Yes. . . .
  In his motion for reconsideration, defendant claimed that          ...
the government made two oral promises to him that had not
been fulfilled. First, he claimed the government promised            THE COURT: Has anyone directly or indirectly made
him a polygraph test, which it never administered. (J.A. at          any promises . . . other than the terms of this [p]lea
88). Second, he claimed the government promised not to               [a]greement to get you to plead guilty to these charges?
confiscate two of his vehicles if the polygraph results showed
that he had not used those vehicles in the commission of a           DEFENDANT: No.
drug offense, but then confiscated them without giving him a
chance to take the polygraph. (Id.). Defendant explained that      (J.A. at 118-119) (emphasis added). The district court also
these unfulfilled promises were not included in the written        confirmed that defendant understood that the government
plea agreement for his protection (id.), yet were intended to be   alone, in its discretion, would determine whether he had
binding on the government. Defendant repeats this argument         cooperated in other investigations and, thus, was eligible for
here. (Defendant’s Brief at 11-13).                                a recommendation of downward departure:

  An integration clause normally prevents a criminal                 THE COURT: All right. Paragraph 3B says that if the
defendant, who has entered into a plea agreement, from               Government determines that your cooperation has
asserting that the government made oral promises to him not          amounted to substantial assistance in the investigation of
contained in the plea agreement itself. Peavy v. United States,      other people, the Government will tell me about your
31 F.3d 1341, 1345 (6th Cir. 1994). In Peavy, the defendant          cooperation at the time of sentencing, and if the
pled guilty to distribution of cocaine. His Rule 11 plea             Government deems it appropriate, the Government will
agreement contained an integration clause. After sentencing,         request that I depart downward from the applicable
he claimed to have had an oral arrangement with the                  sentencing range for you under the sentencing guidelines.
government to reduce his sentence if he cooperated in an             You understand that, sir?
ongoing FBI investigation.         He further claimed the
government failed to live up to its end of the bargain after he      DEFENDANT: Yes.
provided the cooperation requested. Accordingly, defendant           THE COURT: It goes on to say that the Government
sought a hearing at which to contest his guilty plea.                has the right to make the sole determination as to
Defendant’s attorney, who was with him at the time the               whether you have provided that cooperation and
government’s alleged promise was made, filed an affidavit            substantial assistance and as to whether you have
with the district court attesting to the existence of an oral        provided it. You understand that, sir?
promise.
  The government in Peavy conceded that it had entered into          DEFENDANT: Yes.
a oral promise with the defendant, and that the promise was        (J.A. at 116-17) (emphasis added).            Following this
omitted from the plea agreement. But the government                questioning, the district court found that the plea agreement
disputed the terms of the oral promise.                            satisfied Rule 11. (J.A. at 118).
  A hearing was necessary in Peavy because both sides
acknowledged an oral promise and the government placed no
6      United States v. Hunt                 Nos. 98-1047/1762     Nos. 98-1047/1762                  United States v. Hunt          7

   Defendant’s sentencing was set for September 12, 1996,            In December 1997, nearly a year after the adjournment, the
and then moved to January 9, 1997. (J.A. at 121). Between          district court reconvened the parties for sentencing.
the plea hearing and January 9, 1997, law enforcement              Defendant’s lawyer asked for another delay of sentencing and
officials interviewed defendant twice. (J.A. at 38). During        an extension of time to cooperate. (J.A. at 120-21). But the
those interviews, the government claims defendant was              district court denied this request:
uncooperative, and that he did not proffer any information
regarding his knowledge of illegal activities. (Government’s         THE COURT: . . . I’m aware that we were back then on
Brief at 6). Defendant claims he “fully cooperated” during           January 9th, 1997 for sentencing and then there was – I
the interviews, “providing sensitive information . . . that          believe the matter was adjourned so that your client
clearly would aide in seeking independent indictments.” (J.A.        [defendant] could have an opportunity to provide some
at 38).                                                              cooperation to the government. And so now almost a
                                                                     year has passes since then . . . . Here we are again, and
  Because the government found the interviews to be                  you want more time? I’m not disposed to give it. . . .
unproductive, it adjourned the January 9th sentencing to
provide defendant with another chance to cooperate. (J.A. at         ...
81). Confirming by letter the adjournment with defendant’s
lawyer, the government requested a written proffer from              [W]ithin one year after sentencing if Mr. Hunt can
defendant:                                                           furnish some substantial assistance during that period,
                                                                     the government, within one year, can come back and
    As you know, I agreed, with some reluctance, to an               make a motion to reduce the sentence. We’re all aware
    adjournment . . . on January 9, 1997. I am writing to            of that, but I don’t see any reason why at this point . . . I
    advise you of my position as to the issue of cooperation.        should again adjourn this sentencing so that Mr. Hunt
                                                                     can cooperate with the government.
    I have previously written to you about my concern with
    the fact that Mr. Hunt has been reluctant to cooperate.        (J.A. at 121-22).
    Indeed, my investigating officers have expressed to me
    their views that there is no point in a further proffer from     The district court sentenced defendant to 136 months in
    him.                                                           prison (J.A. at 102-03), and this appeal followed.

    As such, at this point, I am respectfully asking that you                              DISCUSSION
    meet with Mr. Hunt and prepare a specific and detailed
    explanation of his knowledge of illegal activities and his        Defendant asserts that the district court erred in not
    proposed cooperation.        I will submit it to the           allowing a hearing. He claims a hearing was necessary for
    investigating officers. If we feel that it justifies a re-     three reasons: first, to determine whether the government
    examination of the cooperation issue, we will advise you.      breached its oral promises; second, to assess whether the
                                                                   government failed to provide him with a good faith
(J.A. at 67-68) (emphasis original).                               opportunity to cooperate; and third, to establish whether his
                                                                   guilty plea was valid. (Defendant’s Brief at 11-17). None of
  Defendant never accepted the government’s invitation to          these contentions has merit.
submit a written proffer. (Government’s Brief at 7).
