               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 18a0005n.06

                                          No. 17-5302

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                      FILED
                                                                                Jan 03, 2018
UNITED STATES OF AMERICA,                              )                    DEBORAH S. HUNT, Clerk
                                                       )
       Plaintiff-Appellee,                             )
                                                       )   ON APPEAL FROM THE UNITED
v.                                                     )   STATES DISTRICT COURT FOR
                                                       )   THE EASTERN DISTRICT OF
DANIEL J. TAYLOR, aka Danny J. Taylor,                 )   TENNESSEE
aka Billy J. Taylor, aka Germaine L.                   )
Thompson, aka Joseph Taylor,                           )
                                                       )
       Defendant-Appellant.                            )


       BEFORE: SUHRHEINRICH, GRIFFIN, and THAPAR, Circuit Judges.

       PER CURIAM. Daniel J. Taylor appeals the district court’s denial of his motion to

withdraw his guilty plea. As set forth below, we affirm.

       Pursuant to a written plea agreement under Federal Rule of Criminal Procedure

11(c)(1)(C), Taylor pleaded guilty to an indictment charging him with carjacking in violation of

18 U.S.C. § 2119. Over a month later, Taylor moved to withdraw his guilty plea, asserting that

he was innocent and wished to proceed to trial. At the hearing on the motion, Taylor also

requested appointment of new counsel based on his belief that defense counsel was providing

ineffective assistance and not acting in his best interests. At the conclusion of the hearing, the

district court considered the factors identified in United States v. Bashara, 27 F.3d 1174, 1181

(6th Cir. 1994), and denied Taylor’s motion to withdraw his guilty plea. The district court

subsequently appointed new counsel.
No. 17-5302
United States v. Taylor

       At sentencing, Taylor renewed his motion to withdraw his guilty plea, which the district

court denied. After reviewing the sentencing factors under 18 U.S.C. § 3553(a), the district court

accepted the parties’ agreement and sentenced Taylor to 156 months of imprisonment followed

by three years of supervised release.

       In this timely appeal, Taylor challenges the district court’s denial of his motion to

withdraw his guilty plea. We review the district court’s decision for abuse of discretion. United

States v. Giorgio, 802 F.3d 845, 848 (6th Cir. 2015). After the district court accepts a guilty

plea, the defendant may withdraw the plea if “the defendant can show a fair and just reason for

requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). “The purpose of Rule 11(d) 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.’” United States v.

Dixon, 479 F.3d 431, 436 (6th Cir. 2007) (quoting United States v. Alexander, 948 F.2d 1002,

1004 (6th Cir. 1991)). In determining whether a defendant has shown a “fair and just reason,”

we consider the totality of the circumstances, including the following 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. Catchings, 708 F.3d 710, 717-18 (6th Cir. 2013) (quoting Bashara, 27 F.3d at

1181). The Bashara 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).




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No. 17-5302
United States v. Taylor

       Taylor filed his motion to withdraw on December 19, 2016—56 days after he signed the

plea agreement and 46 days after he entered his guilty plea. This court has found that similar

periods of delay support the denial of a motion to withdraw. See Bashara, 27 F.3d at 1181 (six-

week delay); United States v. Goldberg, 862 F.2d 101, 104 (6th Cir. 1988) (55-day delay);

United States v. Spencer, 836 F.2d 236, 239 (6th Cir. 1987) (five-week delay). Taylor contends

that he told defense counsel that he wanted to withdraw his guilty plea on December 6, 2016,

during their first meeting after the change-of-plea hearing, and that the length of time between

his guilty plea and his stated desire to withdraw did not constitute significant delay. As the

district court pointed out, the delay of over a month did “not reflect any sort of a mistake” on

Taylor’s part in deciding to plead guilty. Taylor provided no explanation for his delay other than

limited phone access.

       Taylor purportedly maintained his innocence with defense counsel.              In the plea

agreement and during the change-of-plea hearing, however, Taylor admitted that he committed

the carjacking and affirmed that he was pleading guilty because he was in fact guilty.

       The circumstances underlying Taylor’s guilty plea support the denial of his motion to

withdraw. Taylor’s guilty plea was not “hastily entered.” The district court granted Taylor four

extensions of the plea deadline.      During the nearly six months between Taylor’s initial

appearance and his guilty plea, the parties engaged in extensive negotiations resulting in the Rule

11(c)(1)(C) agreement. The transcript of the change-of-plea hearing reflects that the magistrate

judge complied with Rule 11 and that Taylor’s guilty plea was knowing, voluntary, and

intelligent. See Dixon, 479 F.3d at 434. Although Taylor claimed that he did not understand “a

lot of things” during the change-of-plea hearing, he failed to specify what he did not understand.

(RE 54, Page ID ## 331-32). As the district court pointed out, given Taylor’s experience with


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No. 17-5302
United States v. Taylor

the justice system, “[i]t’s very hard to believe that [he] did not understand what [he was] doing

when [he] pled guilty and when [he] entered the plea agreement.” (RE 54, Page ID # 334).

According to Taylor, the magistrate judge should not have conducted the change-of-plea hearing

because the magistrate judge had previously represented him. Defense counsel discussed the

prior representation issue with Taylor before the change-of-plea hearing, and Taylor waived any

potential conflict of interest. After reviewing the transcript from the change-of-plea hearing, the

district court found that the magistrate judge “handled everything very well” and that there was

nothing else that the magistrate judge “could have possibly done that he didn’t do.” (RE 54,

Page ID ## 329-30).

       At the time of his guilty plea, Taylor was 50 years old and had obtained his GED. Taylor

had “a great deal of prior experience with the justice system,” as evidenced by his criminal

history category of V. (RE 54, Page ID # 334). In addition to numerous state convictions,

Taylor had a prior federal conviction and was serving a term of supervised release when he

committed the carjacking.

       Taylor argues that the district court either ignored or at least misapplied the Bashara

factors, pointing to the government’s concession that granting the motion to withdraw would

result in minimal prejudice to the government. However, “prejudice to the government need not

be established or considered unless and until the defendant has established a fair and just reason

for vacating his plea.” Alexander, 948 F.2d at 1004. Having found that Taylor had failed to

meet his burden under Rule 11(d)(2)(B) to “show a fair and just reason for requesting the

withdrawal,” the district court was not required to address prejudice to the government.

       Taylor further contends that the district court did not conduct a meaningful inquiry into

his allegations of ineffective assistance of counsel. During the hearing on Taylor’s motion to


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No. 17-5302
United States v. Taylor

withdraw, the district court asked Taylor to explain his basis for requesting new counsel. Taylor

made two specific complaints: (1) defense counsel allowed him to waive any potential conflict

of interest with the magistrate judge and (2) defense counsel had not obtained additional

discovery that Taylor believed existed. The district court addressed these arguments. After

reviewing the transcript from the change-of-plea hearing, the district court found that the

magistrate judge “handled everything very well” and did not “see anything that would have been

different, in the least, with any other magistrate judge that [Taylor] might have appeared before.”

(RE 54, Page ID # 330). With respect to discovery, defense counsel asserted that discovery had

been provided to Taylor and that there was no reason to believe that there was additional

discovery. Given that Taylor failed to specify what discovery materials were missing or how any

missing discovery would have affected his decision to plead guilty, the district court stated that it

did not have enough information to make a decision on this issue. At sentencing, new counsel

renewed Taylor’s motion to withdraw his guilty plea based on ineffective assistance of counsel

and, when asked by the district court, failed to offer any additional information about prior

counsel’s alleged ineffectiveness.

       Our consideration of the Bashara factors leads to the conclusion that the district court did

not abuse its discretion in denying Taylor’s motion to withdraw his guilty plea. Accordingly, we

AFFIRM the district court’s judgment.




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