                                     File Name: 08a0297n.06
                                       Filed: May 28, 2008

                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                           No. 07-3078

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

v.                                                         ON APPEAL FROM THE
                                                           UNITED STATES DISTRICT
MICHAEL LASHAWN SPRAGLING,                                 COURT FOR THE NORTHERN
                                                           DISTRICT OF OHIO
          Defendant-Appellant.


                                                      /

Before:           MARTIN, GRIFFIN, and GIBSON,* Circuit Judges.


          BOYCE F. MARTIN, JR., Circuit Judge. Michael Lashawn Spragling pleaded guilty to

drug-related charges, and then sought to withdraw his guilty plea. The district court denied the

withdrawal without a hearing, and Spragling now appeals. He argues that the district court erred in

failing to conduct a hearing, and also erred in determining the applicable guideline sentence and the

duration of Spragling’s sentence. For the reasons set out below, we AFFIRM the judgment of the

district court.

                                                  I




          *
        The Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting
by designation.
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Page 2

       On May 10, 2006, a grand jury indicted Spragling on a number of charges, including

conspiracy to distribute both marijuana and cocaine, engaging in financial transactions with the

proceeds of a specified unlawful activity, and the unlawful possession of an unregistered machine

gun. A jury trial was set for October 2, 2006. On the second day of trial, after opening statements

and testimony from two police officers involved in the case, Spragling indicated his desire to change

his plea from not guilty to guilty. The judge gave Spragling time to talk with his two defense

counsel as well as his family, but an hour later was informed that there had been a breakdown in

discussions over how many levels of reduction the government was allowed to give for acceptance

of responsibility. The trial therefore resumed under a plea of not guilty, but twenty minutes later

Spragling reconsidered and told his counsel that he wished to plead guilty. Thereafter, he pleaded

guilty to all four charged counts.

       Spragling’s October 3, 2006 plea agreement included a base offense level of 34 due to the

amount of drugs admitted in the plea agreement, plus a two-level increase for possession of a firearm

and a two-level increase for acting in a leadership role, bringing the offense level to 38 and a

suggested Guideline range of 262-327 months. The government agreed to recommend a two-level

reduction for acceptance of responsibility, bringing the range down to 188-235 months. The judge

also advised Spragling of his rights, his waiver of those rights under the plea, and the possible

penalty on the charges, and Spragling told the court that his plea was voluntary.

       One month later, on November 2, Spragling’s attorneys filed a motion to withdraw from the

case, asserting that Spragling had fired them. The district court granted this motion and appointed

new counsel. On December 8, Spragling filed a pro se notice of his intent to withdraw his guilty
No. 07-3078
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Page 3

plea, which the district court denied. The district court also denied Spragling’s motion to continue

sentencing in order to obtain new counsel. Nine days before sentencing, Spragling obtained his own

counsel.

       At sentencing, the district court imposed a 262-month (21.8-year) sentence. The sentence

included an offense level calculation of 38, consistent with the plea agreement, but did not include

a reduction for acceptance of responsibility; this brought his range back up from 188-235 months

to 262-327 months. Spragling objected to the calculations, arguing that he was innocent of the

charges, that the evidence did not support the drug weight found in the pre-sentence report, and that

there was no evidence that he was a leader of any criminal scheme. The court denied these

objections. Next, Spragling objected to the court’s decision not to reduce the offense-level

calculation for acceptance of responsibility. After hearing evidence on this point, which included

Spragling’s probation officer testifying that Spragling had refused to be interviewed, the court found

that Spragling had “in no way, shape, or form . . . engaged in any conduct that would constitute an

acceptance of responsibility.” Finally, Spragling objected to the increase in his offense level for

having committed a crime while on probation. The court overruled this objection as well, finding

that the facts stipulated to in the plea agreement indicated that the criminal activity commenced

while Spragling was still on probation from a previous offense.

       Spragling now appeals, arguing that it is inconsistent to determine disputed guidelines issues

(namely quantity of drugs, leadership role, and firearm possession) using a plea agreement that was

later renounced, while relying on that same renunciation to deny an acceptance of responsibility

reduction.
No. 07-3078
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                                                  II

       We review a district court’s denial of a motion to withdraw a guilty plea for abuse of

discretion. United States v. Bashara, 27 F.3d 1174, 1180 (6th Cir. 1994). We review sentencing

decisions under a deferential abuse-of-discretion standard for reasonableness. United States v. Bolds,

511 F.3d 568, 578 (6th Cir. 2007) (citing Gall v. United States, 128 S. Ct. 586, 594 (2007)).



1) Spragling’s motion to withdraw his guilty plea

       Federal Rule of Criminal Procedure 32(e) provides that a court may permit a defendant to

withdraw a plea prior to sentencing if he shows any “fair and just reason” for the withdrawal. FED .

R. CRIM . P. 32(e). As this Court said in United States v. Alexander, the aim of the rule 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 that he made a bad choice in pleading guilty.” 948 F.2d 1002, 1004 (6th

Cir.1991).

       Although the federal rules do not establish criteria for determining whether a defendant’s

reasons for vacating his plea are “fair and just,” this Court set forth the relevant considerations in

United States v. Spencer, including: (1) the length of time between the guilty plea and the filing of

the motion to withdraw; (2) the defendant’s reason for not presenting the grounds earlier; (3) whether

the defendant has asserted or maintained his innocence; (4) the circumstances surrounding the plea,

the nature and background of the defendant, and whether the defendant has admitted guilt; and (5)

any potential prejudice to the government, although a showing of prejudice is not necessary. 836
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United States v. Spragling
Page 5

F.2d 236, 238-40 (6th Cir. 1987). In United States v. Pluta, this Court added the defendant’s prior

experience with the criminal justice system as a sixth factor. 144 F.3d 968, 973 (6th Cir. 1998).

These factors are not exhaustive, and the district court must review all the circumstances surrounding

the original entrance of the plea as well as the motion to withdraw. United States v. Bazzi, 94 F.3d

1025, 1027 (6th Cir. 1996).

       The district court concluded that Spragling failed to present a “fair and just cause” why he

should be allowed to withdraw his plea, and we agree. This case does not rise to the level of other

cases that have been found to meet the high bar of 32(e). Cf. United States v. Davis, 410 F.3d 1122

(9th Cir. 2005) (counsel “grossly mis-characteriz[ing]” defendant’s possible sentence was “fair and

just reason” to withdraw plea); United States v. Bell, 22 F.3d 274 (11th Cir. 1994) (failure of an

indictment to charge an offense is a “fair and just” reason to withdraw a plea). Spragling’s 65-day

delay in filing his motion is also problematic. See United States v. Baez, 87 F.3d 805, 807 (6th Cir.

1996) (67-day delay without justification was strongest factor supporting denial of motion to

withdraw); United States v. Goldberg, 862 F.2d 101, 104 (6th Cir. 1988) (calling a 55-day gap a

“lengthy delay”). Spragling argues that a turnover in counsel justifies his delay, but counsel

withdrew a month after his plea and could have prepared the withdrawal motion in that time.

Furthermore, Spragling has experience with the criminal justice system, having pled guilty or nolo

contendere to a number of minor crimes throughout his adult life. Spragling has asserted his

innocence, the third Spencer factor, but offers no factual basis for this claim.

       Finally, the circumstances of Spragling’s plea call into question Spragling’s claim that it was

not entered knowingly and voluntarily, and that he entered the plea with “unsure heart and confused
No. 07-3078
United States v. Spragling
Page 6

mind.” See Alexander, 948 F.2d at 1004. The district court was extremely thorough with Spragling

during the plea colloquy, their conversation spanning forty pages of the Joint Appendix. Over the

course of the plea, the judge went through each count of the indictment in detail, discussed the

waiver of constitutional rights incident to a plea, informed Spragling of the maximum and minimum

statutory penalties, and had Spragling look up offense levels and criminal history categories on a

Sentencing Guidelines table. Both the judge and Spragling asked questions of each other throughout

the colloquy. Finally, the judge asked Spragling if his pleas were voluntary and if he was satisfied

with his counsel, to which Spragling answered in the affirmative before pleading guilty to each

count. Given these facts, we conclude that Spragling entered a knowing and voluntary plea, and the

district court did not abuse its discretion when it denied Spragling’s motion to withdraw his guilty

plea.

        The district court also did not err in failing to conduct an evidentiary hearing on Spragling’s

motion to withdraw his plea. The court was familiar with Spragling’s case and the circumstances

of his plea, and presided over the case from the beginning. A district court has discretion over

whether to grant a hearing on a motion to withdraw, see Pough v. United States, 442 F.3d 959, 964

(6th Cir. 2006), and the district court did not abuse this discretion.



2) The district court’s determination under the sentencing guidelines

        Spragling argues that he was entitled to a reduction of his sentence for acceptance of

responsibility under the Sentencing Guidelines. See U.S.S.G. § 3E1.1 (providing reduction in

offense level for a defendant who “clearly demonstrates acceptance of responsibility for his
No. 07-3078
United States v. Spragling
Page 7

offense.”). The determination of whether a defendant has accepted responsibility is a factual

question that should be accorded great deference and should not be disturbed unless clearly

erroneous. See United States v. Surratt, 87 F.3d 814, 821 (6th Cir. 1996). A defendant bears the

burden of showing by a preponderance of the evidence that the reduction is justified, see United

States v. Williams, 940 F.2d 176, 181 (6th Cir. 1991), and a defendant who pleads guilty is not

automatically entitled to a reduction. See United States v. Mahaffey, 53 F.3d 128, 134 (6th Cir.

1995).

         Spragling argues that by rejecting acceptance of responsibility, the district court also

necessarily rejected the stipulations contained in the plea agreement as to the amount of drugs

involved in his crime, his leadership role, and his possession of firearms. Spragling’s argument fails

because “acceptance of responsibility” entails more than simply pleading guilty. See Mahaffey, 53

F.3d at134. The district court heard testimony that Spragling refused to be interviewed for his pre-

sentence report, filed objections to the pre-sentence report contesting all of the Sentencing

Guidelines factors applicable to him, and has consistently maintained his innocence since his plea.

The district court concluded that Spragling “in no way, shape, or form” evinced conduct that would

support a downward adjustment for acceptance of responsibility, and did not clearly err in this

determination.



3) Reasonableness of the sentence under § 3553(a)

         We review a district court’s sentencing determination “under a deferential abuse-of-discretion

standard” for reasonableness.      United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007).
No. 07-3078
United States v. Spragling
Page 8

“Reasonableness” has two components: procedural and substantive. Id., citing Gall v. United States,

128 S. Ct. 586, 597 (2007). Spragling first argues that his base offense level and enhancements were

improperly calculated because they were based only on the plea agreement and not any evidentiary

findings. This, of course, is Spragling’s own doing: no evidence exists outside the plea agreement

because Spragling decided to forego his trial and stipulate to all factual allegations contained in the

plea. Otherwise, it is clear to us that the sentence was procedurally reasonable: the judge carefully

walked Spragling through the consequences of his plea, responded to Spragling’s questions, and

computed the guidelines correctly. The district court also filed a sentencing memorandum that

clearly outlined how each of the § 3553(a) factors applied to Spragling’s case.

        Spragling also argues that a 22-year sentence for a single crime is substantively unreasonable,

in light of 1) his single prior felony conviction for non-support of dependents, and 2) the significantly

shorter sentences imposed on the other members of the conspiracy. Here again, the district court did

not abuse its discretion. See Gall, 128 S. Ct. at 597. In the sentencing memorandum, the judge

considered Spragling’s background and the sentences of the other defendants, as well as the §

3553(a) factors, and found a sentence that it believed to be “sufficient, but not greater than necessary,

to comply with the purposes” of sentencing set forth in 18 U.S.C. § 3553(a). Thus, we find that the

district court’s sentence was reasonable.

                                                   III

        Spragling’s contention that his guilty plea was not entered knowingly and voluntarily is

belied by the sentencing transcript. Spragling has failed to show a “fair and just reason” why he is

entitled to withdraw his guilty plea. Moreover, the suggested Guidelines range was correctly
No. 07-3078
United States v. Spragling
Page 9

calculated and the sentence itself was reasonable. We therefore AFFIRM the judgment of the district

court.
