                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 15a0466n.06

                                            No. 14-5585

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                   FILED
                                                                                 Jun 23, 2015
UNITED STATES OF AMERICA,                             )                      DEBORAH S. HUNT, Clerk
                                                      )
       Plaintiff-Appellee,                            )
                                                      )      ON APPEAL FROM THE
v.                                                    )      UNITED STATES DISTRICT
                                                      )      COURT FOR THE WESTERN
MARVELL ANTONIO CULP,                                 )      DISTRICT OF TENNESSEE
                                                      )
       Defendant-Appellant.                           )              OPINION
                                                      )


BEFORE: NORRIS, SUTTON, and DONALD, Circuit Judges.

       PER CURIAM. Marvell Culp pleaded guilty to sex trafficking, had second thoughts, and

moved to withdraw his plea. The district court denied his motion and then sentenced him, among

other things, to pay $4,500 in restitution to one of his victims. Culp appeals the denial of his

motion and the order of restitution.

       Culp claims he is innocent, never wanted to plead guilty to sex trafficking, and should

have been allowed to withdraw his guilty plea. He argues that while he was violent with a

prostitute, this was a case of “domestic violence turned to sex trafficking.” Culp also argues that,

because his victim provided inadequate proof of her claimed losses, the district court improperly

ordered him to pay $4,500 in restitution.

                                                 I.

       In a thirteen-count superseding indictment, the government charged Culp with two counts

of sex trafficking, 18 U.S.C. § 1591; nine counts of using an interstate facility to promote
                                                                              United States v. Culp
                                                                                      No. 14-5585


prostitution, 18 U.S.C. § 1952; one count of solicitation to commit kidnapping, 18 U.S.C. § 373;

and one count of obstruction of justice, 18 U.S.C. § 1503. After the district court denied Culp’s

motion to suppress incriminating handwritten notes and phone calls, Culp agreed to plead guilty

pursuant to a written agreement.

       As part of the plea agreement, the government agreed to dismiss all but one count of the

superseding indictment. Culp appeared at a change-of-plea hearing on September 6, 2012

intending to plead guilty. Because Culp expressed uncertainty about pleading guilty, the court

continued the hearing, allowing him time to reconsider. Culp returned to court on September 11,

2012 and pleaded guilty to one count of sex trafficking. On September 18, 2013, more than a

year after his guilty plea, he filed a Motion to Withdraw Guilty Plea Pursuant to Rule

11(d)(2)(B). The district court denied Culp’s motion on February 4, 2014.

       In April 2014, the district court sentenced Culp to fifteen years of imprisonment, five

years of supervised release, and ordered him to pay $4,500 in restitution to the victim.

                                                II.

1. Withdrawal of Guilty Plea

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

discretion. United States v. Haygood, 549 F.3d 1049, 1052 (6th Cir. 2008). “A district court

abuses its discretion when it ‘relies on clearly erroneous findings of fact, improperly applies the

law or uses an erroneous legal standard.’” United States v. Goddard, 638 F.3d 490, 493 (6th Cir.

2011) (quoting United States v. Ellis, 470 F.3d 275, 280 (6th Cir. 2006)).

       Rule 11 of the Federal Rules of Criminal Procedure governs pleas. It permits a defendant

to withdraw a guilty plea “after the court accepts the plea, but before it imposes sentence if . . .

the defendant can show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P.

                                                 2
                                                                              United States v. Culp
                                                                                      No. 14-5585


11(d)(2). The purpose of Rule 11 is to allow a defendant to withdraw “a hastily entered plea

made with unsure heart and confused mind.” United States v. Alexander, 948 F.2d 1002, 1004

(6th Cir. 1991). To determine whether a defendant has shown a fair and just reason for

requesting a plea withdrawal, we look at a number of factors, including:

       (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.

Haygood, 549 F.3d at 1052 (quoting United States v. Bashara, 27 F.3d 1174, 1181 (6th Cir.

1994)); see also United States v. Martin, 668 F.3d 787, 795–97 (6th Cir. 2012). These factors are

a useful guide, but they are “general and nonexclusive.” Id.

       When a defendant has a change of heart and asks the court to withdraw his plea, he must

do so without unwarranted delay. See, e.g., United States v. Baez, 87 F.3d 805, 808 (6th Cir.

1996) (finding a 67-day delay between plea and motion to withdraw excessive); United States v.

Valdez, 362 F.3d 903, 912 (6th Cir. 2004) (75 day excessive); Haygood, 549 F.3d at 1053 (138

days excessive). A delay of more than six months presents a defendant with an almost

insurmountable obstacle to withdrawal. See Ellis, 470 F.3d at 282 (“[P]rolonged delay weighs

heavily against Defendant and supports an affirmance of the district court’s denial of the

motion.”). Here, Culp moved to withdraw his plea more than a year after pleading guilty and is

unable to establish a valid excuse for the delay. This prolonged delay supports the district court’s

denial of Culp’s motion.

       The circumstances underlying the entry of the guilty plea show a patient and methodical

approach by the district court. When Culp first appeared to enter his guilty plea and expressed

                                                 3
                                                                               United States v. Culp
                                                                                       No. 14-5585


confusion and discomfort to the district court, the district court delayed Culp’s plea decision for

five days. When Culp returned, the district court was satisfied that Culp was alert to the

proceedings, calm, and had made a sober decision. The district court took precautions to ensure

that Culp entered his guilty plea thoughtfully, not under coercion, and with a sound mind. The

circumstances underlying Culp’s guilty plea provide no reason to allow him to withdraw it.

       Culp’s lengthy delay in moving to withdraw coupled with the district court’s patience

weigh strongly against withdrawal. While Culp asserted his innocence throughout the

proceedings and he does not have extensive prior experience with the criminal justice system,

these factors are “not particularly compelling in light of the strength of the factors weighing

against withdrawal.” United States v. Martin, 668 F.3d at 797. Here, the district court relied on

appropriate facts and properly applied the correct legal standard. It did not, therefore, abuse its

discretion in denying Culp’s motion to withdraw his guilty plea.

2. Restitution

       Courts must award restitution to victims of sex trafficking. 18 U.S.C. § 1593(a). Here, the

district court awarded $4,500 in restitution to the victim of Culp’s sex trafficking. Culp asks us to

vacate that award and remand the matter to the district court for resentencing with an instruction

to award no restitution. But at sentencing Culp did not object to the district court’s order of

restitution. We therefore review for plain error. United States v. Koeberlein, 161 F.3d 946, 949-

50 (6th Cir. 1998).

       In Culp’s plea agreement, he waived his “right to appeal any sentence imposed by the

[district] Court and the manner in which the sentence is determined so long as [it] is in accord

with t[he] Agreement.” Restitution is part of Culp’s “sentence.” See United States v. Winans, 748

F.3d 268, 271 (6th Cir. 2014). Furthermore, Culp acknowledged that the sex-trafficking statute at

                                                 4
                                                                            United States v. Culp
                                                                                    No. 14-5585


issue requires him to pay restitution, and he agreed to “make restitution in an amount to be

determined by the Court.” The district court determined, from an uncontroverted victim

statement, that $4,500 in restitution was proper.

        We find no plain error by the district court. Culp both waived his right to appeal his

sentence and explicitly agreed to pay restitution. Therefore, we affirm the district court’s order

of restitution.

                                                III.

        The judgment of the district court is affirmed.




                                                    5
