        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206                2    United States v. Valdez                     No. 02-3043
     ELECTRONIC CITATION: 2004 FED App. 0094P (6th Cir.)
                 File Name: 04a0094p.06                        UNITED STATES DEPARTMENT OF JUSTICE,
                                                               CRIMINAL DIVISION, Washington, D.C., for Appellee.
UNITED STATES COURT OF APPEALS                                                     _________________
               FOR THE SIXTH CIRCUIT                                                   OPINION
                 _________________                                                 _________________

 UNITED STATES OF AMERICA , X                                    CLAY, Circuit Judge. After pleading guilty prior to trial in
                                                               the United States District Court for the Northern District of
             Plaintiff-Appellee, -                             Ohio to one count of conspiring to possess cocaine with the
                                   -
                                   -  No. 02-3043              intent to distribute in violation of 21 U.S.C. §§ 841 and 846,
            v.                     -                           Julio Valdez moved to withdraw his plea on the ground that
                                    >                          he did not understand the quantity of drugs which he had
                                   ,                           admitted possessing. The district court denied that motion
 JULIO VALDEZ,                     -
         Defendant-Appellant. -                                and sentenced Valdez to 192 months’ imprisonment followed
                                                               by five years of supervised release. Because Valdez’s guilty
                                  N                            plea was voluntary and the district court did not abuse its
       Appeal from the United States District Court            discretion in denying his motion to withdraw the plea, we
       for the Northern District of Ohio at Toledo.            AFFIRM his conviction and sentence. We refuse to entertain
      No. 00-00756—David A. Katz, District Judge.              Valdez’s claim of ineffective assistance of counsel as unripe
                                                               for review.
                Argued: January 27, 2004
                                                                                              I
            Decided and Filed: April 2, 2004
                                                                 On September 5, 2000, a grand jury sitting in the Northern
Before: SUHRHEINRICH, CLAY, and SUTTON, Circuit                District of Ohio returned a multi-count indictment against
                   Judges.                                     numerous Defendants, including Defendant Julio Valdez.
                                                               The grand jury charged Valdez with conspiracy to distribute
                   _________________                           and possess with intent to distribute cocaine, cocaine base and
                                                               marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846
                        COUNSEL                                (Count 1); knowingly and intentionally possessing with the
                                                               intent to distribute approximately 80.79 grams of cocaine in
ARGUED: Matthew M. Robinson, Cincinnati, Ohio, for             violation of 21 U.S.C. § 841(a)(1) (Count 15); and knowingly
Appellant. Jeffrey P. Singdahlsen, UNITED STATES               and intentionally possessing with the intent to distribute
DEPARTMENT OF JUSTICE, CRIMINAL DIVISION,                      approximately 12.12 grams of cocaine in violation of
Washington, D.C., for Appellee. ON BRIEF: Matthew M.           21 U.S.C. § 841(a)(1) (Count 16). Count 1 of the indictment
Robinson, Cincinnati, Ohio, for Appellant. Louis M. Fischer,   did not ascribe a specific amount of cocaine or cocaine base
                                                               to Valdez, although it described a drug conspiracy

                             1
No. 02-3043                      United States v. Valdez     3   4        United States v. Valdez                          No. 02-3043

masterminded by David Trinidad Gonzalez, who allegedly           Criminal Procedure. The court noted the terms of the plea
had obtained over 500 kilograms of cocaine and over 10           agreement and also that “the parties have stipulated that the
kilograms of cocaine base. The indictment explained that         defendant conspired to possess with intent to distribute at
Gonzalez distributed those drugs through many of his family      least 50 kilograms but not less than 150 kilograms of cocaine,
members, relatives and associates, including Defendant           that being a base level of 36.” (Tr. at 3.)1 During the court’s
Valdez and ten others.                                           colloquy to determine Valdez’s competence to withdraw his
                                                                 guilty plea, Valdez informed the court that he had attended up
   In August 2001, Valdez agreed via a written plea agreement    to the eighth grade in school and could read and write
to plead guilty to the conspiracy count (Count 1), in exchange   English. He also told the court that he was in good physical
for the government’s agreement to drop Counts 15 and 16 and      health and had not taken any medication in the last two days
not to oppose a three-point reduction in the applicable          that would impair his ability to understand what was
sentencing guideline offense level for Valdez’s acceptance of    happening around him. After the court found Valdez
responsibility. The agreement stated, in part:                   competent, Valdez told the court that he was satisfied with his
                                                                 attorney’s efforts and advice up to that point in time and that
  By signing this agreement, the defendant admits 1) that        he had read the indictment and discussed it with his attorney.
  the conspiracy in Count 1 of the indictment existed, and       Valdez’s attorney stated that he had no doubt that Valdez
  that he knowingly and voluntarily joined the conspiracy,       completely understood the charges against him. Among other
  and that the purpose of the conspiracy in Count One was        things, the court told Valdez that by entering a guilty plea, he
  to knowingly and intentionally distribute, and possess         would be admitting his guilt and waiving certain rights,
  with intent to distribute, cocaine.                            including the right to have the government “prove you guilty
                                                                 by competent evidence beyond a reasonable doubt.” (Tr. at
                               ** *                              14.) Valdez stated that he understood the rights he would be
                                                                 foregoing.
  The government and the defendant agree and stipulate to
  the following statement of facts and applicable                  The court again asked Valdez whether he had read the plea
  sentencing guideline factors:                                  agreement and gone over it with his attorney, to which Valdez
                                                                 responded affirmatively. The court then had the following
    1.   That the defendant conspired to possess                 exchange with Valdez:
         with intent to distribute at least 50 but less
         than 150 kilograms of cocaine (Base                           THE COURT: In paragraph No. 7 [of the plea
         Offense Level 36).                                          agreement], it reads: The government and the defendant
                                                                     agree and stipulate to the following statement of facts
(J.A. 102, ¶¶ 3, 7.) The agreement further noted that Valdez         and applicable guideline sentencing factors:
had read the plea agreement, that he had an opportunity to
discuss it with his attorney, that he fully understood the
agreement and that he was signing the agreement voluntarily.
  On August 30, 2001, the district court conducted Valdez’s           1
                                                                      The Joint A ppe ndix d oes not contain a complete version of the plea
plea proceedings pursuant to Rule 11 of the Federal Rules of     proceedings. Citations to “Tr.” are to the complete transcript obtained
                                                                 from the district court.
No. 02-3043                      United States v. Valdez         5   6    United States v. Valdez                      No. 02-3043

    One, that the defendant conspired to possess with                (Tr. at 22.) In response to the court’s inquiries, Valdez stated
  intent to distribute at least 50 but less than 150 kilograms       that he had heard the prosecutor’s statement and that he
  of cocaine[,] base offense level 36. Do you understand             neither had any disagreement with it nor wished to add
  that?                                                              anything to it. Valdez then formally pleaded guilty to Count
                                                                     1 of the indictment, which the court accepted. A presentence
    DEFENDANT VALDEZ: Yes, I do.                                     investigation was ordered.
    THE COURT: And do you agree and stipulate to                       On November 13, 2001, Valdez filed a motion to vacate his
    that paragraph?                                                  plea, claiming that he did not fully understand the crime to
                                                                     which he had pleaded guilty. In a handwritten affidavit,
    DEFENDANT VALDEZ: Yes, I do.                                     Valdez explained that he did not appreciate the distinction
                                                                     between “grams” of cocaine and the “kilograms” of cocaine
(Tr. at 17.) The court then told Valdez that it could not            referenced in his plea agreement and at the plea proceedings.
determine his sentencing guideline range with certainty, but         On December 10, 2001, the court denied Valdez’s motion to
that it expected to impose a sentence between 135 and 181            vacate his plea, reasoning that Valdez had not offered an
months, depending upon Valdez’s criminal history. The court          explanation for the 75 days that had elapsed between Valdez’s
accepted the plea agreement and confirmed that Valdez had            plea and his motion to withdraw. The court further noted that
not been threatened or induced to plead guilty and had agreed        the circumstances surrounding the plea did not weigh in favor
to plead guilty after consultation with his attorney and family.     of a withdrawal because, inter alia, Valdez had stated at the
                                                                     plea hearing that he reads and writes English, that he had read
  After accepting the plea agreement, the court asked the            and understood the indictment and that he had discussed the
prosecutor to articulate the factual underpinning for Valdez’s       indictment with his attorney. Last, the court noted the
plea. The prosecutor stated, in relevant part:                       “distinct possibility of substantial prejudice to the
     With regard to Julio Valdez, the evidence will show             Government” if a withdrawal were allowed because “the
  that he … joined the conspiracy in question and he was             recollections of witnesses may not be as fresh now” and
  … given and sold to him amounts of cocaine as set forth            because “substantial time and money would need to be spent
  in the factual stipulation, 50 to 150 kilograms and that he        in preparation for and execution of a trial.”
  received this cocaine from Mr. David Gonzalez and from               Valdez’s sentencing hearing took place on December 21,
  other couriers who transported it to him in Adrian and             2001. Valdez repeated his claim that he did not understand
  Ohio and in Marion, Ohio. Mr. Valdez then resold the               that he had pleaded guilty to possessing with intent to
  cocaine that he received in Adrian, Michigan, and in               distribute kilogram (as opposed to gram) amounts of cocaine.
  Marion, Ohio, and also had a set of or a group of persons          The court rejected this argument, having already rejected his
  that he sold to including Doug Ackerman and other                  motion to withdraw his plea. The court then went over
  persons named and unnamed in the indictment in                     Valdez’s presentence report which had indicated a base
  question.                                                          offense level of 36 and a criminal history category of 6, which
     And the evidence would further show that …                      put him in the guideline range of 235 to 293 months. The
  defendant[] knowingly and voluntarily joined the                   court reduced Valdez’s criminal history category to 4 after
  conspiracy knowing full well its objects and its purpose.          accepting Valdez’s argument that most of his criminal history
No. 02-3043                         United States v. Valdez    7    8     United States v. Valdez                      No. 02-3043

pertained to driving offenses. The court also reduced               admission that he committed the offense unless the defendant
Valdez’s base offense level by 3 levels for his acceptance of       received real notice of the true nature of the charge against
responsibility, reducing the sentencing range to 188 to 235         him, the first and most universally recognized requirement of
months. The court then sentenced Valdez to 192 months of            due process.’”) (quoting Smith v. O'Grady, 312 U.S. 329, 334
imprisonment followed by a term of five years’ supervised           (1941)). Because a guilty plea involves the admission of “‘all
release. This appeal ensued.                                        the elements of a formal criminal charge,’” United States v.
                                                                    Syal, 963 F.2d 900, 904 (6th Cir. 1992) (quoting McCarthy v.
                               II                                   United States, 394 U.S. 459, 466 (1969)), the accused “must
                                                                    have knowledge of all those elements.” Id.
A. Valdez’s Guilty Plea Was Knowing and Voluntary.
                                                                      “In a simple case the district court may need only to read
   This Court may hear a direct appeal to a plea proceeding         the indictment and allow the defendant to ask questions about
conducted pursuant to Rule 11 of the Federal Rules of               the charge.” Syal, 963 F.2d at 904-05 (citingVan Buren, 804
Criminal Procedure. United States v. Van Buren, 804 F.2d            F.2d at 892). “When the case is more complex, further
888, 890 (6th Cir. 1986). Because Valdez attempted to               explanation may be required. In any case the district court
withdraw his plea in the district court on the basis that it was    must be satisfied, after discussion with the defendant in open
not voluntary, the harmless error standard applies. United          court, that the defendant understands the elements of the
States v. Vonn, 535 U.S. 55, 62-63 (2002). The Court reviews        offense.” Id. at 905 (citing Van Buren, 804 F.2d at 891). At
such proceedings for substantial compliance with Rule 11,           a minimum, the defendant must understand the “critical” or
vacating a plea only when substantial rights of the defendant       “essential” elements of the offense to which he or she pleads
have been affected. United States v. Stead, 746 F.2d 355,           guilty. See Bousley v. United States, 523 U.S. 614, 618-19
356-57 (6th Cir. 1984); see also Fed. R. Crim. P. 11(h) (“A         (1998) (observing that defendant’s plea would be
variance from the requirements of this rule is harmless error       “constitutionally invalid” if “neither he, nor his counsel, nor
if it does not affect substantial rights.”). Cf. Vonn, 535 U.S.     the court correctly understood the essential elements of the
at 63 (noting that, in contrast to harmless error review, plain     crime with which he was charged”) (emphasis added);
error review puts the burden of proving a deprivation of            Henderson, 426 U.S. at 647 n.18 (“There is no need in this
substantial rights on the defendant and further requires the        case to decide whether notice of the true nature, or substance,
defendant to persuade the court that the error “seriously           of a charge always requires a description of every element of
affected the fairness, integrity or public reputation of judicial   the offense; we assume it does not. Nevertheless, intent is
proceedings”) (internal quotation marks, punctuation and            such a critical element of the offense of second-degree
citations omitted).                                                 murder that notice of that element is required.”) (emphasis
                                                                    added).
  Rule 11 of the Federal Rules of Criminal Procedure
requires that, before a court accepts a guilty plea, it must          Rule 11(b)(1)(G)’s requirement that a defendant understand
insure that the defendant understands, inter alia, “the nature      the essential elements of the crime is integrally related to Rule
of each charge to which the defendant is pleading.” Fed. R.         11(b)(3)’s requirement that the district court determine that
Crim. P. 11(b)(1)(G). See also Henderson v. Morgan, 426             the plea has a factual basis. “[B]ecause a guilty plea is an
U.S. 637, 645 (1976) (“[C]learly the plea could not be              admission of all the elements of a formal criminal charge, it
voluntary in the sense that it constituted an intelligent           cannot be truly voluntary unless the defendant possesses an
No. 02-3043                       United States v. Valdez        9    10       United States v. Valdez                            No. 02-3043

understanding of the law in relation to the facts.” McCarthy,         understood each element of the offense, including the
394 U.S. at 466 (citation omitted). “Thus, in addition to             essential element of drug quantity which increased the
directing the judge to inquire into the defendant's                   maximum penalty for the crime.
understanding of the nature of the charge and the
consequences of his plea, Rule 11 also requires the judge to            The facts of this case unquestionably show that the trial
satisfy himself that there is a factual basis for the plea.” Id. at   court ensured Valdez understood the drug quantity to which
467. See also Fed. R. Crim. P. 11(b)(3) (requiring district           he pleaded guilty because the amount of drugs had been
court to determine whether there is a factual basis for a plea        raised no less than four times before the trial court accepted
before entering judgment on plea).                                    Valdez’s plea. In Van Buren, supra, this Court noted:

   Valdez pleaded guilty to violating 21 U.S.C. § 846                   Where the crime is easily understood, several courts have
(conspiracy) and § 841(a) (knowingly or intentionally                   held that a reading of the indictment, or even a summary
possessing cocaine with the intent to distribute). A violation          of the charges in the indictment and an admission by the
of § 841(a) involving 50 to 150 kilograms of cocaine carries            defendant, is sufficient to establish a factual basis under
a maximum penalty of life imprisonment, 21 U.S.C.                       Rule 11.
§ 841(b)(1)(A), whereas an offense involving 50 to 150
grams of cocaine carries a maximum sentence of 20 years               804 F.2d at 892 (citations omitted).2 Valdez’s crime was
imprisonment. 21 U.S.C. § 841(b)(1)(C). Although the                  “easily understood.” This Court is not aware of any authority,
amount of cocaine involved in a violation of § 841(a) is an
enhancement element of the offense, this element is treated no             2
differently than the traditional elements of a § 841(a)                     Van Buren involved a defendant who had pleaded guilty to the
violation for purposes of determining whether a plea was              unlawful use of a telep hone to comm it or facilitate a conspiracy to possess
                                                                      with intent to distribute cocaine. At his Rule 11 proceeding, the defendant
knowing and voluntary. See United States v. Leachman, 309             had been read the indictment and then asked if there was anything further
F.3d 377, 384 (6th Cir. 2002) (noting that the enhancement            he wanted to know about the charge. This Court held that reading the
elements of a violation of § 841 are not to be treated                indictment to the defendant and the defendant’s subsequent admission of
differently “than the more traditional elements of the offense,       guilt was not sufficient to sustain the plea bec ause “[t]o fully understand
such that their treatment is anything more than a mirror image        the charge aga inst him, defendant must have understood wha t it meant to
of the treatment of the other elements”; holding that the right       be a member of a conspiracy and to act in furtherance o f that conspiracy.”
                                                                      Van Buren, 804 F.2d at 89 2. The Co urt faulted the Rule 11 proceed ings
to have the amount of drugs proved to a jury beyond a                 because the defendant had not been informed of the nature of the
reasonable doubt can be waived upon pleading guilty to a              conspiracy and the district judge “did not inquire of defendant if he
§ 841(a) violation in the same way that the trial of the              understood what a conspiracy was.” Id. at 891. Accord United States v.
traditional elements can be waived). Also cf. Harris v. United        Bickerstaff, No. 97-3449, 1998 W L 552834, at *4 (6th Cir. Aug. 13,
States, 536 U.S. 545, 557 (2002) (“Apprendi [v. New Jersey,           1998) (unpublished; vacating plea to drug conspiracy count due to lack
                                                                      of a sufficient factual basis under Rule 11 because the court did not
530 U.S. 466 (2000)] said that any fact extending the                 explain to the defendant what it meant to be a member of a conspiracy
defendant’s sentence beyond the maximum authorized by the             and to act in furtherance of that conspiracy). This portion of the holding
jury’s verdict would have been considered an element of an            in Van Buren is not relevant in this case. Unlike the defendant in Van
aggravated crime--and thus the domain of the jury--by those           Buren, Valdez has not argued that his plea was involuntary on the ground
who framed the Bill of Rights.”). Thus, prior to accepting            that he did not understand what a conspiracy is or his role in the
                                                                      conspiracy. He has not contested the fact that he participated in a
Valdez’s plea, the trial court should have ensured that Valdez        conspiracy, only the q uantity of d rugs attrib utable to him.
No. 02-3043                     United States v. Valdez     11    12    United States v. Valdez                      No. 02-3043

nor has Valdez pointed to any, suggesting that a common           involved during a colloquy with the judge; holding that
drug possession and distribution crime becomes complex            defendant “knowingly and voluntarily waived his
simply when the amount of drugs is an element of the case.        constitutional rights to a jury and to proof beyond a
Valdez has provided this Court with no evidence or legal          reasonable doubt of the amount of drugs specified against
authority to overcome the common sense presumption that a         him”); United States v. Baez, 87 F.3d 805, 810 (6th Cir. 1996)
competent layperson who can read and write in English,            (holding that district court did not violate Rule 11 in
particularly a layperson who by his own admission is familiar     accepting guilty plea for violation of §§ 841 and 846 because
with drug transactions, can understand the significant            “the plea agreement’s written description of the essential facts
distinction – both in terms of mass and dollar value –            underlying the charge supports a finding of guilty” and
between grams and kilograms of cocaine.                           because of “the defendant’s express acknowledgement of the
                                                                  accuracy of the agreement’s provisions”); United States v.
   Since Valdez’s crime was not complex, his guilty plea          Edgecomb, 910 F.2d 1309, 1313 (6th Cir. 1990) (finding no
complied with Rule 11, as long as Valdez was provided with        Rule 11 violation when defendants pleaded guilty to
a sufficient summary of the charges against him. He was. At       conspiracy to violations of §§ 841 and 846 after the
Valdez’s plea hearing, the government summarized the drug         government had read the facts constituting the conspiracy and
conspiracy charges, stating that Valdez intentionally and         the court had recited the count of the indictment and had
knowingly had joined a conspiracy; purchased and received         confirmed that defendants understood the charges against
50 to 150 kilograms of cocaine from David Gonzalez and            them; holding that the district court was not required to
from other couriers in Adrian, Michigan and Marion, Ohio;         specifically determine whether the defendant had understood
and resold the cocaine in Adrian, Michigan, and in Marion,        the charged offense which was “simple enough for a lay
Ohio, to Doug Ackerman and others. Valdez then expressed          person to understand”).
his agreement with the government’s brief summary, thereby
admitting his guilt. Valdez was informed on three other             Further, the Supreme Court has observed that as long as a
occasions (in the plea agreement and two other times during       defendant is provided a copy of his indictment prior to
the plea colloquy) that he was being charged with possessing      pleading guilty (as Valdez was), there is a “presumption that
with the intent to distribute 50 to 150 “kilograms” of cocaine.   the defendant was informed of the nature of the charge against
On two of those occasions, Valdez confirmed the correctness       him.” Bousley, 523 U.S. at 618 (citing Henderson, 426 U.S.
of the amounts in response to the court’s inquiries.              at 650 (1976) (White, J., concurring)). Relying on the
Accordingly, Valdez’s plea complied with Rule 11 because he       Bousley presumption, the Eighth Circuit Court of Appeals
was adequately informed of the easily understandable charges      rejected a Rule 11 challenge identical to Valdez’s – the
against him before pleading guilty.                               district court’s alleged failure to inform the defendant that the
                                                                  government would be required to prove the quantity of the
  This Court previously has applied Van Buren to similar          controlled substances beyond a reasonable doubt. United
facts as those presented by Valdez and declined to find a         States v. Perez, 270 F.3d 737, 739 (8th Cir. 2001). That court
reversible Rule 11 violation. See Leachman, 309 F.3d at 384-      was persuaded by the facts that (a) the trial court had advised
86 (rejecting request to vacate plea of guilty to violations of   the defendant of the quantity of controlled substances alleged
§§ 841 and 846 because the amount of drugs was reflected in       in the indictment and the sentencing range based on those
the defendant’s indictment, the plea was not coerced, and the     quantities and (b) the defendant pleaded guilty to those
defendant “implicitly” had agreed to the amount of drugs          amounts stated in the indictment. Id. at 740. Similarly, in
No. 02-3043                      United States v. Valdez     13    14    United States v. Valdez                      No. 02-3043

this case, Valdez was advised of the quantity of cocaine to          If this Court were to follow Ninth Circuit precedent, Valdez
which he pleaded guilty and the sentencing range for such a        would have a strong argument that, notwithstanding his
plea; Valdez then pleaded guilty.                                  repeated admission to possessing with the intent to distribute
                                                                   kilogram amounts of cocaine, he “could not properly evaluate
   Arguably, the Eighth Circuit’s Perez is inapposite because      the risks of entering the plea agreement, and could not
it involved a plain error standard of review, whereas here the     intelligently and voluntarily plead guilty,” because the district
less rigorous harmless error standard applies due to Valdez’s      court did not inform him that the government needed to prove
attempt to withdraw his guilty plea prior to sentencing. Two       drug quantity beyond a reasonable doubt. Villalobos, 333
panels of the Ninth Circuit Court of Appeals recently reached      F.3d at 1075. But we sit in the Sixth Circuit, not the Ninth
opposite results on facts similar to Perez primarily because of    Circuit. To vacate Valdez’s conviction under Ninth Circuit
the different standards of review applicable in those cases.       precedent would result in an irreconcilable conflict with the
Compare United States v. Villalobos, 333 F.3d 1070, 1074           prior rulings of this Court. We therefore hold that the district
(9th Cir. 2003) (applying harmless error standard because          court complied with Rule 11.
defendant challenged drug quantity at sentencing hearing;
vacating plea of guilty to violations of §§ 841(a) and 846,        B. The District Court Did Not Abuse Its Discretion in
even though the defendant had pleaded guilty and stipulated           Denying Valdez Permission to Withdraw His Guilty
in his plea agreement to the drug amount; holding that district       Plea.
court violated Rule 11 by not informing the defendant that the
government would have to prove the quantity of drugs, an             The permission to withdraw a guilty plea prior to
element that would enhance the maximum penalty for the             sentencing is a matter within the broad discretion of the
crime, beyond a reasonable doubt) with United States v.            district court. United States v. Goldberg, 862 F.2d 101, 103
Minore, 292 F.3d 1109, 1120 (9th Cir. 2002) (applying plain        (6th Cir. 1988). Accordingly, this Court reviews a district
error standard; holding that the district court erred under Rule   court’s refusal to permit a defendant to withdraw his or her
11 by failing to advise defendant that the government must         guilty plea for an abuse of discretion. Id. at 104.
prove the quantity of drugs beyond a reasonable doubt when
the quantity would expose defendant to a higher maximum              A defendant may withdraw a guilty plea after the district
sentence, but affirming conviction and sentence because            court accepts a plea, but before sentencing, if the defendant
defendant admitted in his plea agreement, during his plea          can show “a fair and just reason for requesting the
colloquy and at his sentencing hearing that he was responsible     withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). The Court may
for the quantity of drugs); see also United States v. Wallace,     consider the following factors, among others, in deciding
276 F.3d 360, 369 (7th Cir. 2002) (applying plain error            whether to grant permission to withdraw a guilty plea:
review; noting that there was error in defendant’s indictment      (1) whether the movant asserted a defense or whether he has
and in the plea colloquy because he was not informed that the      consistently maintained his innocence; (2) the length of time
government would have to prove drug quantity beyond a              between the entry of the plea and the motion to withdraw;
reasonable doubt; affirming conviction and sentence because        (3) why the grounds for withdrawal were not presented to the
the defendant “never denied” his involvement with the drug         court at an earlier time; (4) the circumstances underlying the
quantity at issue).                                                entry of the plea of guilty, the nature and the background of
                                                                   a defendant and whether he has admitted his guilt; and
                                                                   (5) potential prejudice to the government if the motion to
No. 02-3043                      United States v. Valdez     15    16   United States v. Valdez                      No. 02-3043

withdraw is granted. Goldberg, 862 F.2d at 103-04; accord             Second, the circumstances surrounding Valdez’s plea
United States v. Bazzi, 94 F.3d 1025, 1027 (6th Cir. 1996).        strongly suggest that he did appreciate the crime to which he
“The factors listed are a general, non-exclusive list and no one   was pleading guilty and the likely sentence range to which he
factor is controlling.” Id.                                        would be subjected. As noted above, Valdez’s alleged
                                                                   criminal conduct was described at least four times prior to the
  The district court denied Valdez’s motion to withdraw his        entry of his guilty plea. On three of those occasions, Valdez
plea, reasoning that (1) Valdez had not offered an explanation     affirmatively assented to the description of his conduct,
for the 75 days that had elapsed between his plea and his          including the quantity of drugs that he allegedly possessed.
motion to withdraw, (2) the circumstances surrounding the          There is no dispute that Valdez was competent at the time of
plea suggested that Valdez had understood the indictment,          his plea, that he had not been coerced to plead guilty, that he
which he had discussed with his attorney, and (3) the              read and understood English and that he had discussed the
government might be prejudiced by the stale recollections of       indictment and the plea with his attorney, who, according to
witnesses and the need to expend time and money trying the         Valdez, had provided him with satisfactory advice. Because
case.                                                              Valdez has presented no persuasive reason for such a lengthy
                                                                   delay in bringing his motion to withdraw and because there is
  This Court disagrees with the district court’s third stated      no evidence of unusual circumstances surrounding his plea,
reason, because there appeared to be no factual basis for the      the Court sees no basis to hold that the district court abused
court to find that a few months’ delay created by Valdez’s         its discretion.
guilty plea and subsequent withdrawal would have prejudiced
the government. The government always has to spend time            C. Valdez’s Claim of Ineffective Assistance of Counsel Is
and money trying a case, so this “prejudice” is irrelevant on         Not Ripe for Judicial Review.
these facts. There also was no finding in the record that key
witnesses were no longer available or that the few months’            Valdez argues that he was denied effective assistance of
delay had hindered their ability to remember key events.           counsel because his trial attorney failed to make clear that
                                                                   Valdez was pleading guilty to kilogram drug amounts rather
   Nevertheless, the Court agrees with the first two reasons       than grams. In theory, claims of ineffective assistance of
stated by the district court. First, Valdez’s unjustified 75-day   counsel can be raised on direct review. Massaro v. United
delay, alone, supported the court’s denial of a motion to          States, 538 U.S. 500, ___, 123 S.Ct. 1690, 1696 (2003).
withdraw. See United States v. Durham, 178 F.3d 796, 798-          Typically, direct review is appropriate where “trial counsel’s
99 (6th Cir. 1999) (“The strongest factor supporting the           ineffectiveness is so apparent from the record that appellate
district court’s denial of Durham’s motion is the length of        counsel will consider it advisable to raise the issue on direct
time between Durham’s plea and the filing of his motion to         appeal.” Id. Here, Valdez’s trial counsel’s alleged
withdraw. Durham waited approximately seventy-seven days           ineffectiveness is not apparent from the record. There is little
to file his motion after entering his guilty plea.”); Baez, 87     evidence in the record regarding what advice, if any, Valdez’s
F.3d at 808 (“The strongest factors supporting the district        trial counsel provided with regard to drug quantity, only
court’s ruling are the sixty-seven day delay between the           Valdez’s assertion that he did not understand the distinction
motion and the plea, and Baez’s failure to justify this            between grams and kilograms. Such facts are more
extensive delay.”).                                                appropriately developed at the district court level. See United
                                                                   States v. Barrow, 118 F.3d 482, 494 (6th Cir. 1997) (“‘The
No. 02-3043                      United States v. Valdez     17

more preferable route for raising an ineffective assistance of
counsel claim is in a post-conviction proceeding under
28 U.S.C. § 2255,’ whereby the parties can develop an
adequate record.”) (quoting United States v. Carr, 5 F.3d 986,
993 (6th Cir. 1993)). Accordingly, the Court declines to
entertain the merits of Valdez’s claim of ineffective assistance
of counsel.
                              III
 For all the foregoing reasons, the Court AFFIRMS
Valdez’s conviction and sentence.
