                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 09a0182n.06
                              Filed: March 6, 2009

                                           No. 07-4521

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
          Plaintiff-Appellee,                     )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
JEFFREY MICHAEL JANNUZZI,                         )   NORTHERN DISTRICT OF OHIO
                                                  )
          Defendant-Appellant.                    )
                                                  )
                                                  )


Before: RYAN, GIBBONS, AND SUTTON, Circuit Judges.

          JULIA SMITH GIBBONS, Circuit Judge. Defendant-appellant Jeffrey Michael Jannuzzi

seeks to withdraw his guilty plea to a three-count indictment that resulted from his possession of

child pornography on his home computer. Because we, like the district court, find that Jannuzzi has

failed to meet his burden to demonstrate “a fair and just reason for requesting the withdrawal,” we

affirm.

                                                 I.

          On April 11, 2007, a federal grand jury returned an indictment charging Jannuzzi with

receiving and distributing visual depictions of a minor engaged in sexually explicit conduct, in

violation of 18 U.S.C. § 2252(a)(2); receiving and distributing child pornography, in violation of 18



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U.S.C. § 2252A(a)(2)(A); and possessing child pornography, in violation of 18 U.S.C. §

2252A(a)(5)(B). The charges arose from an investigation conducted by an undercover Federal

Bureau of Investigation (“FBI”) agent in Miami, Florida. On April 6, 2006, the undercover agent

downloaded three image files of actual minors engaged in sexually explicit conduct from Jannuzzi’s

computer using peer-to-peer file sharing software. Jannuzzi’s computer was located at his home in

Amherst, Ohio. Following the seizure of Jannuzzi’s computer, investigators determined that

Jannuzzi had downloaded from the Internet a total of 76 image files and 36 video files of minors

engaged in sexually explicit conduct using the file-sharing software. Because of the nature of the

software, these files were available to any individual with access to a computer with a similar peer-

to-peer file-sharing program.

       Jannuzzi agreed to plead guilty in a formal agreement with the government. The agreement

was negotiated between Jannuzzi, his then-attorney Jack W. Bradley, and the Assistant United States

Attorney Michael Sullivan. Jannuzzi’s plea agreement explained in detail the elements of each

charge to which Jannuzzi agreed to plead guilty. It also expressly waived Jannuzzi’s right to a trial

and stipulated to the advisory Sentencing Guidelines enhancements that would apply, leaving open

the determination as to Jannuzzi’s criminal history category. Immediately after discussing the

maximum sentence Jannuzzi faced on each of the three criminal charges, the plea agreement stated:



       Minimum sentence must include imprisonment. The sentence for the offenses
       charged in counts 1 & 2 may not be satisfied by a term of probation and must include
       a period of imprisonment not less than 5 years.

The plea agreement then went on to acknowledge that Jannuzzi had “fully discussed with [his]

attorney” the content of the agreement and “had sufficient time and opportunity to discuss all aspects


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of the case in detail with [his] attorney.” Thus, the agreement declared that Jannuzzi was “satisfied”

with his attorney’s assistance and entered into the agreement voluntarily. Jannuzzi signed the

agreement and also initialed every page.

       On August 7, 2007, the same date Jannuzzi signed the plea agreement, the district court

conducted a change-of-plea hearing. In an extensive and thorough colloquy, the district judge went

over each major element of the plea agreement, specifically noting the mandatory-minimum five-

year prison sentence. The district court gave Jannuzzi multiple opportunities to ask questions.

Jannuzzi also indicated, in response to questioning from the district court, that he was satisfied with

the representation provided by his attorney Bradley and had had enough time to review fully the plea

agreement. Following the colloquy, the district court accepted Jannuzzi’s guilty plea on all three

counts of the indictment.

       Bradley moved to withdraw as Jannuzzi’s attorney on August 31, 2007. The district court

granted Bradley’s motion after Jannuzzi obtained his new counsel, Laurence A. Turbow, on

September 6. The very next day, Turbow filed a motion to withdraw Jannuzzi’s guilty plea on the

grounds that Bradley had “pressured” Jannuzzi into agreeing to the plea deal, Jannuzzi only had

twenty minutes to read the plea agreement prior to the hearing, and Jannuzzi did not fully

comprehend “the full impact of his plea agreement.”

       The district court held a hearing on Jannuzzi’s motion on September 24, 2007. After

listening to arguments from both Turbow and the government, the district court concluded that

Jannuzzi had failed to establish a fair and just reason for withdrawing his plea and therefore denied

his motion. At the later sentencing hearing, the district court sentenced Jannuzzi according to the

terms of the plea agreement. The district court granted a three-level departure for cooperation and


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determined that his criminal history category was the lowest, Level I. Jannuzzi received a total

effective sentence of 151 months’ imprisonment, the lowest amount recommended under the

advisory Guidelines. This timely appeal of the district court’s denial of Jannuzzi’s motion to

withdraw his guilty plea followed.

                                                 II.

       We review the denial of a motion to withdraw a guilty plea under Federal Rule of Criminal

Procedure 11(d) under an abuse-of-discretion standard. United States v. Dixon, 479 F.3d 431, 436

(6th Cir. 2007). We will find that a district court has abused its discretion if “it relies on clearly

erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal

standard.” United States v. Lineback, 330 F.3d 441, 443 (6th Cir. 2003) (citing United States v.

Spikes, 158 F.3d 913, 927 (6th Cir. 1998)). In applying this standard to a decision concerning the

withdrawal of a guilty plea, “[w]e recognize that the circumstances . . . and judgments required are

particularly difficult for any district judge and review with that in mind.” United States v. McCoy,

155 F. App’x 199, 202 (6th Cir. 2005). The defendant has the burden of demonstrating that proper

grounds exist to grant a motion to withdraw a guilty plea. See Dixon, 479 F.3d at 436 (citing United

States v. Triplett, 828 F.2d 1195, 1197 (6th Cir. 1987)).

       Federal Rule of Criminal Procedure 11(d) requires that a defendant must “show a fair and

just reason for requesting the withdrawal” of a guilty plea prior to sentencing. Fed. R. Crim. P.

11(d)(2)(B). Rule 11(d) allows for a “hastily entered plea made with unsure heart and confused mind

to be undone.” United States v. Alexander, 948 F.2d 1002, 1004 (6th Cir. 1991). The purpose of

the rule is “not to allow a defendant to make a tactical decision to enter a plea, wait several weeks,




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and then obtain a withdrawal if he believes that he made a bad choice in pleading guilty.” Id.

(internal quotation and citation omitted).

       To determine whether Jannuzzi has established a fair and just reason to withdraw his guilty

plea, we consider a number of factors, which include the following:

       (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 statute on other

grounds as recognized in United States v. Caseslorente, 220 F.3d 727, 734 (6th Cir. 2000); see also

United States v. Bazzi, 94 F.3d 1025, 1027 (6th Cir. 1996). Jannuzzi argues that balancing these

factors leads to a conclusion that the district court erred in refusing to allow Jannuzzi to withdraw

his guilty plea. Specifically, Jannuzzi notes that he filed his motion to withdraw his plea thirty days

after having entered it and on the day after his new counsel formally entered his appearance.

Jannuzzi maintains that his prior attorney Bradley pressured him into signing the plea agreement and

falsely informed him that there were alternative sentencing options available such as home

confinement and probation. Finally, Jannuzzi reminds us that this is his first brush with the criminal

justice system, and he had no reason to understand the complex proceedings surrounding the entry

of a guilty plea and its ramifications.

       Jannuzzi is correct that the thirty-day period between his August 7 plea of guilty and his

September 7 motion to withdraw his plea weighs in his favor. However, our case law instructs that

at best it weighs only slightly toward Jannuzzi’s benefit. While we have allowed for the withdrawal


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of a guilty plea in an unpublished case when the defendant made his intention to withdraw his plea

known within 30 days, McCoy, 155 F. App’x at 203, we have also rejected similar appeals that stray

not too far outside of this time period. See United States v. Spencer, 836 F.2d 236, 239 (6th Cir.

1987) (thirty-five days); cf. United States v. Durham, 178 F.3d 796, 799 (6th Cir. 1999) (seventy-

seven days), United States v. Baez, 87 F.3d 805, 808 (6th Cir. 1996) (sixty-seven days), United States

v. Goldberg, 862 F.2d 101, 104 (6th Cir. 1988) (fifty-five days). In Spencer, we noted the language

of the D.C. Circuit, which observed that “the courts look with particular favor on . . . motions made

. . . within a few days after the initial pleading.” 836 F.2d at 239 (quoting United States v. Roberts,

570 F.2d 999, 1008 (D.C. Cir. 1977) (emphasis added)). We also cited with approval the Fifth

Circuit’s refusal to allow a defendant to withdraw his guilty plea when only twenty-two days had

passed. Id. (citing United States v. Carr, 740 F.2d 339, 345 (5th Cir. 1984)). Thus, Jannuzzi’s

period of delay is at the boundary line between what is acceptable and what is not. Regardless of

the weight given to the timeliness factor, however, a defendant needs the remaining factors viewed

as a whole to weigh in his favor to demonstrate an entitlement to relief. See Dixon, 479 F.3d at 436-

37.

       Jannuzzi’s arguments regarding factors two and four are linked. Jannuzzi asserts that his

attorney at the time of his change-of-plea hearing pressured him into quickly signing the plea

agreement and assured him that alternative sentences were available. Only upon his hiring of new

counsel, Jannuzzi claims, did he come to realize that he faced at least a mandatory five-year prison

sentence. The record refutes both of Jannuzzi’s principal contentions. The plea agreement contains

bold-faced headings labeled “Defendant is Satisfied with Assistance of Counsel,” “Agreement




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is Complete and Voluntarily Entered,”and “Minimum sentence must include imprisonment.”

At the bottom of each page containing these bold-faced headings are Jannuzzi’s initials.

       The district court did not allow these textual statements to suffice. During the plea colloquy,

Jannuzzi answered “Yes” when the district court inquired as to whether Jannuzzi was “satisfied with

Mr. Bradley so far.” Jannuzzi also denied that “anyone made any threats or promises other than

what’s set forth in this plea agreement to either force or to compel [him] to enter a plea of guilt.”

The district court twice reminded Jannuzzi that “there will not be probation in this case” and that

“the offenses charged in Counts 1 and 2 [to which Jannuzzi pled] may not be satisfied by a term of

probation and must include imprisonment of not less than five years.” Jannuzzi acknowledged that

he understood the consequences of his plea. Finally, just before Jannuzzi entered his formal pleas

of guilty, the district court checked once again “to make sure [Jannuzzi] had sufficient time to sit

down with Mr. Bradley and go over all the things [the court has] just mentioned . . . in detail, and

to have Mr. Bradley answer any of [Jannuzzi’s] questions to [his] satisfaction.” It is difficult to see

how much more specific the district court could have been in making certain that Jannuzzi knew the

sentencing consequences of his plea and probing whether Jannuzzi’s counsel had adequately

represented Jannuzzi’s interests. We therefore find that factors two and four weigh strongly against

Jannuzzi, as the circumstances surrounding Jannuzzi’s plea offered him numerous opportunities to

bring to the district court’s attention any deficiencies; and Jannuzzi fails to explain persuasively why

he failed to take advantage of those chances.

       Our conclusions as to factors two and four are bolstered when we turn our attention to factors

five and six, which examine the defendant’s nature and background and whether he has had any prior

experience with the criminal justice system, respectively. As the district court noted, Jannuzzi “is


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not someone who doesn’t possess intelligence.” This is borne out by the one question Jannuzzi did

ask during the plea colloquy. Following the district court’s explanation of the plea agreement’s

terms concerning the advisory Sentencing Guidelines calculation, Jannuzzi inquired as to why his

offense level was based upon six hundred images when “on the previous page [of the agreement] it

said 76 [images] and 36 [videos].” The district court ordered the government to explain to Jannuzzi

that under the relevant Guideline provision, “each video clip is to be counted as 75 images.” See

also U.S.S.G. § 2G2.2 n.4(B)(ii). While it is true that Jannuzzi had no prior criminal history before

his arrest for these offenses, his question to the district court reveals someone who was keenly aware

of the nature and content of the proceedings then occurring. Jannuzzi’s question was detailed and

specific and involved the calculations that the district court would employ to aid it in its

determination of his prison sentence. Far from being on “auto pilot,” Jannuzzi was in full command

of his senses. Jannuzzi’s response to the government’s explanation of the Guidelines calculations

reveals that he had ample opportunity to review the terms of his plea and had in fact done so: “Mr.

Bradley did mention that to me a few days ago. I just thought they would have it all accounted for

in there. I apologize.” (emphasis added) Consequently, we find that factor five weighs against

Jannuzzi, as he clearly had the requisite intelligence to understand what was occurring and has no

ailments that would place undue pressure upon him. While he has no prior experience with the

criminal justice system, we find that the sixth factor’s weight is lessened because his lack of prior

experience clearly did not impede his ability to comprehend the intricacies of modern criminal

sentencing.

       Finally, we note that factor three also does not weigh in favor of Jannuzzi. At no time during

the plea hearing did Jannuzzi protest his innocence. Only upon further consideration of the length


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of his incarceration did Jannuzzi decide that “pleading guilty is not in his best interest” and therefore

“wish[] to maintain his innocence.” Cf. McCoy, 155 F. App’x at 200, 203 (allowing withdrawal

where the defendant himself sought to have the indictment dismissed and then attempted to fire his

counsel at the plea hearing).1

                                                  III.

        We find that in weighing all of the Bashara factors together, Jannuzzi has failed to

demonstrate that he has presented a “fair and just reason” for withdrawing his plea. Fed. R. Crim.

P. 11(d)(2)(B). Instead, Jannuzzi’s motion appears to be that of a defendant who now feels that “he

made a bad choice in pleading guilty.” Alexander, 948 F.2d at 1004 (internal quotation and citation

omitted). Rule 11 does not grant relief under such circumstances. Consequently, we affirm the

judgment of the district court denying Jannuzzi’s motion to withdraw his guilty plea.




        1
         Unless the defendant establishes that the other factors viewed as a whole weigh in his favor,
a court need not consider, under factor seven, whether the defendant’s motion to withdraw his plea
prejudices the government. See Spencer, 836 F.2d at 240.

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