                   NOT RECOMMENDED FOR PUBLICATION
                        File Name: 04a0036n.06
                       Filed: October 20, 2004

                          No. 02-5876; 02-6490

                    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
RAY WASHINGTON (02-5876);      )       EASTERN DISTRICT OF KENTUCKY
TERRONE GATESKILL              )
(02-6490),                     )
                               )       OPINION
     Defendants-Appellants.    )
______________________________ )



     Before: CLAY and GILMAN, Circuit Judges; and MATIA, District
Judge.*


      PAUL R. MATIA, District Judge.        Defendants-appellants Ray

Washington and Terrone Gateskill entered conditional guilty pleas

for conspiracy to possess and distribute cocaine in violation of

21 U.S.C. § 846.     In their conditional pleas, the defendants

reserved the right to appeal from the district court’s denial of

their pretrial motions to suppress evidence obtained by wiretap.

Washington also appeals the district court’s denial of his motion

to withdraw his guilty plea and the court’s order overruling

objections to factual findings in his Presentence Report (“PSR”).

  *
   The Honorable Paul R. Matia, Chief United States District Judge for the
Northern District of Ohio, sitting by designation.
United States v. Washington (02-5876)
United States v. Gateskill (02-6490)

For the reasons set forth below, we AFFIRM.

I. BACKGROUND

     A. Factual Background

     In early 2001, pursuant to information provided by a

cooperating source, law enforcement officials began to

investigate a drug trafficking enterprise known to involve

defendant-appellant Ray Washington, a Kentucky resident suspected

of being the leader of a cocaine distribution ring in the

Lexington, Kentucky area.    The cooperating source informed law

enforcement officials that Washington and his associates would

frequently travel to Indianapolis, Indiana to obtain cocaine from

his primary supplier.    Washington and his associates would then

transport and distribute the cocaine to dealers in the Lexington,

Kentucky area.

     In the government’s attempt to gather more detailed

information about the scope of Washington’s criminal enterprise,

it sought and obtained authorization from the district court for

the electronic surveillance of Washington’s cellular telephone on

February 20, 2001.   Continued wiretap orders were issued on March

21 and April 20, 2001.   As a result of these wiretaps, law

enforcement learned that Washington and his associates were

planning to travel to Indianapolis on April 25, 2001, to obtain a

large shipment of cocaine from a primary distributor, Anthony

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United States v. Washington (02-5876)
United States v. Gateskill (02-6490)

Everett.   On that day, with the assistance of wiretap evidence,

law enforcement officers stopped Washington as he was driving

back to Lexington from Indianapolis.    The officers arrested

Washington and searched his vehicle, where they found a box

containing twenty-five kilograms of cocaine in the trunk.

     B. Procedural Background

     On May 21, 2001, a federal grand jury returned a twenty-five

count indictment, charging Washington and twenty-three other

persons with various drug offenses.    Some of the individuals were

suppliers to Washington, and others were immediate associates,

such as defendant-appellant Terrone Gateskill, also a resident of

Lexington, Kentucky.

     Before trial, both Washington and Gateskill filed motions to

suppress the wiretap evidence on the basis that the applications

lacked the appropriate “necessity” for court approval.

Washington filed an additional motion to suppress evidence

obtained from the search of his vehicle, claiming that the

government had no legal basis to stop and search his automobile

other than information provided by the “poisonous” wiretap.     The

district court denied each of these motions.

     On February 7, 2002, Washington entered a conditional plea

of conspiracy to possess cocaine with intent to distribute, 18

U.S.C. § 846.   As evidenced by the agreement, Washington

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United States v. Washington (02-5876)
United States v. Gateskill (02-6490)

acknowledged that he was subject to the statutory penalty of not

less than twenty years in prison because (1) the underlying

offense involved at least five kilograms of cocaine and (2) he

had a prior drug felony conviction. (Washington Plea, JA 480-85)

Gateskill entered his conditional plea on February 19, 2002 to

conspiracy to possess cocaine with intent to distribute, 18

U.S.C. § 846.

     On May 6, 2002, Washington filed various objections to his

PSR, claiming that numerous factual inaccuracies therein had the

potential to expose him to a greater sentence.      These objections

were essentially directed at two findings in the PSR: (1) the

conspiracy involved more than fifty kilograms of cocaine; and (2)

the conspiracy involved five or more individuals and that

Washington was the leader/organizer of the group.      These

objections were overruled by the district court.

     On May 31, 2002, Washington filed a motion to withdraw his

guilty plea, claiming that the “terms of the plea agreement were

not what the Appellant thought he had originally agreed to.”

(Appellant Brief, p. 30)   This motion was also denied.

     In accordance with their plea agreements, Washington was

sentenced to 240 months imprisonment and Gateskill received a

prison term of forty-two months.       This timely appeal followed.



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United States v. Washington (02-5876)
United States v. Gateskill (02-6490)

II. ANALYSIS

     A. Wiretap Evidence

     Washington and Gateskill argue that (1) the government

failed to demonstrate investigatory necessity in requesting the

wiretap authorization and (2) evidence gained from the wiretaps

was therefore fruit of a poisonous tree.   We disagree.

     A government request for a wiretap order must reasonably

demonstrate to a judge that “normal investigative procedures have

been tried and have failed or reasonably appear to be unlikely to

succeed if tried or to be too dangerous[.]” 18 U.S.C. §

2518(3)(c).    The issuing judge enjoys considerable discretion,

however, in making a practical and commonsense judgment about the

sufficiency of the government’s showing. United States v.

Landmesser, 553 F.2d 17, 20 (6th Cir. 1977).

     Defendants-appellants claim that the wiretap authorization

was not necessary in this matter because the government was

already enjoying great success in penetrating the criminal

enterprise through information provided by cooperating

individuals and physical surveillance.   The district court

rejected this reasoning, concluding that electronic surveillance

of Washington’s cellular phone, the virtual “nerve center” of the

drug conspiracy, was necessary to establish the full scope of the

criminal enterprise.   We concur, finding that the district court

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United States v. Washington (02-5876)
United States v. Gateskill (02-6490)

did not abuse its discretion.   The problem faced by law

enforcement in this matter involved a widespread, interstate

conspiracy that relied primarily upon cellular communications for

operational planning and execution. See, e.g., United States v.

Woods, 544 F.2d 242, 257 (6th Cir. 1976)(even significant

opportunities for undercover infiltration would not alleviate

“difficulty in learning all the complex details of the widespread

[drug] organization, and its aiders and abettors”).   Accordingly,

the evidence gathered as a result of the electronic surveillance

was not tainted fruit.   Furthermore, the stop and seizure of

evidence from Washington’s automobile were not “tainted” because

the underlying wiretap that prompted the government action was

lawful.

     B. Withdrawal of Guilty Plea

     Washington next appeals the district court’s denial of his

motion to withdraw his guilty plea, claiming that he had

“misgivings” about the “unilateral nature” of the plea.    The

district court denied the motion, finding no “fair and just

reason” to allow the withdrawal.       We concur.

     The right to withdraw a plea prior to sentencing is not

absolute, but is left to the broad discretion of the trial court.

United States v. Spencer, 836 F.2d 236, 238 (6th Cir. 1987).     The

decision of the district court to deny a motion for plea

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United States v. Washington (02-5876)
United States v. Gateskill (02-6490)

withdrawal should be sustained unless the district court has

abused its discretion. Id. (citing Doherty v. American Motors

Corp., 728 F.2d 334, 338 (6th Cir. 1984).

      This Court has enumerated a number of factors that a

district court may consider when evaluating whether a defendant

has established, pursuant to FED. R. CRIM. P. 32(d), a “fair and

just reason” to withdraw his guilty plea.   They are: (1) the

length of time between the entry of the plea and the motion to

withdraw it; (2) why the grounds for withdrawal were not

presented to the court earlier; (3) whether the defendant has

asserted and maintained his innocence; (4) the circumstances

underlying the entry of the plea, the nature and background of

the defendant, and whether he has admitted guilt; and (5)

potential prejudice to the government. Spencer, 836 F.2d at 838-

40.

      In this case, an examination of these factors shows that

Washington has not met his burden.   First, the district court

addressed the “timing” of Washington’s motion to withdraw,

highlighting the fact that it was filed some 100 days after his

plea agreement.   While courts look with favor on motions to

withdraw made soon after the plea entry, longer delays must be

scrutinized more carefully, since the purpose of RULE 32(d) "is

not to allow a defendant to make a tactical decision to enter a

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United States v. Washington (02-5876)
United States v. Gateskill (02-6490)

plea, wait several weeks, and then obtain a withdrawal if he

believes that he made a bad choice in pleading guilty." Id. at

239 (citing United States v. Carr, 740 F.2d 339, 345 (5th Cir.

1984), cert. denied, 471 U.S. 1004 (1985)).       In this matter,

Washington waited more than three months before notifying the

court that he wished to withdraw his plea.      This period exceeds

lengths of time that we have previously found to be excessive.

See id. (five weeks); United States v. Triplett, 828 F.2d 1195,

1198 (6th Cir. 1987)(eighty-four days).      Second, the

circumstances surrounding Washington’s plea clearly indicate it

was voluntarily and knowingly given.      In response to the court’s

interrogation, Washington stated that his plea was not the result

of any pressure or duress and that he knowingly participated in

the underlying criminal offense.       Moreover, Washington received

the exact sentence, 240 months imprisonment, he explicitly

bargained for in the plea agreement.      Given these facts, we are

compelled to conclude that the district court did not abuse its

discretion when it denied Washington’s motion to withdraw his

guilty plea.

     C. Objections to PSR

     Washington finally argues that the district court erred by

not sustaining his objections to specific findings in the PSR

related to his role in the drug conspiracy and the quantity of

                                   8
United States v. Washington (02-5876)
United States v. Gateskill (02-6490)

cocaine involved.     Washington claims that factual errors related

to these issues exposed him to a greater sentencing guideline

range than what otherwise should have been enumerated in the PSR

had his objections been sustained.1        This claim is meritless.

      Washington pled guilty to a drug conspiracy charge that

carried a twenty-year statutory minimum term.          He was therefore

required by statute to serve at least 240 months for the drug

offense.   Assuming arguendo that the PSR erroneously noted

Washington’s leadership role in the conspiracy and the quantity

of drugs involved, the error would be harmless in light of the

fact that this Court will not address an alleged error in the

offense level if the mandatory minimum penalty trumps the

guideline range. See United States v. Gaitan-Acevedo, 148 F.3d

577, 595 (6th Cir. 1998); United States v. Gaines, 122 F.3d 324,

330 (6th Cir. 1997)(“When Congress and the Sentencing Commission

disagree on matters of sentencing policy, Congress trumps.”);

United States v. Rodriguez-Razo, 962 F.2d 1418, 1420 (9th Cir.

1992)(“If the error resulted from a misapplication of the

Sentencing Guidelines, but did not affect the district court’s

choice of the sentence imposed, the error is harmless and remand



  1
   Washington claims he would have been subject to a sentencing guideline
range of 121 to 151 months imprisonment if his objections to the PSR were
sustained. (Appellant Brief, p. 31) Instead, the PSR enumerated a sentencing
guideline range of 235 to 293 months imprisonment. (JA 742)

                                     9
United States v. Washington (02-5876)
United States v. Gateskill (02-6490)

is not required.”); UNITED STATES SENTENCING GUIDELINES § 5G1.1(b)

(“Where a statutorily required minimum sentence is greater than

the maximum of the applicable guideline range, the statutorily

required minimum sentence shall be the guideline sentence.”).



III. CONCLUSION

     For all the reasons set forth above, we AFFIRM the judgment

of the district court.




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