                         NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 18a0225n.06

                               Nos. 16-6560, 17-5033, and 17-5220

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                  FILED
UNITED STATES OF AMERICA,           )                                       May 01, 2018
                                    )                                   DEBORAH S. HUNT, Clerk
     Plaintiff-Appellee,            )
                                    )
             v.                     )
                                                               ON APPEAL FROM THE
                                    )
                                                               UNITED STATES DISTRICT
BENJAMIN FREDRICK CHARLES ROBINSON, )
                                                               COURT FOR THE EASTERN
NAVARIUS SAVELL WESTBERRY, and DION )
                                                               DISTRICT OF KENTUCKY
TERRY TAYLOR,                       )
                                    )
     Defendants-Appellants.         )
                                    )


BEFORE: GILMAN, COOK, and GRIFFIN, Circuit Judges.

          GRIFFIN, Circuit Judge.

          Defendants trafficked heroin and fentanyl, resulting in at least two overdoses and one

death.     They pleaded guilty to various conspiracy-to-distribute counts under 21 U.S.C.

§§ 841(a)(1), 846, and the district court imposed significant terms of imprisonment. Robinson

and Taylor appeal their sentences, mainly claiming the district court erred in upwardly departing

from their respective Guidelines ranges under § 5K2.1 because “death resulted” from their

conduct. Westberry appeals the district court’s denial of his motion to withdraw his guilty plea,

and claims ineffective assistance of counsel during the plea stage. For the following reasons, we

affirm.
Nos. 16-6560, 17-5033, and 17-5220,
United States v. Robinson, et al.


                                                 I.

        Defendants Benjamin Robinson, Navarius Westberry, and Dion Taylor distributed heroin

and fentanyl (marketed as, or mixed with, heroin) in Madison County, Kentucky.                They

promoted their narcotics as a “‘new batch’ from Detroit,” which generally flowed from

Westberry to Taylor to Robinson to individual buyers. One of the purchasers, Alyssa Silvia,

overdosed on fentanyl (which she believed to be heroin) purchased from Robinson. But for

receiving emergency medical treatment, Silvia would have died from her overdose. Corey

Brewer was not so fortunate. After his friend purchased what was supposedly heroin from one

of Robinson’s associates for their collective use, Brewer overdosed, and died of acute fentanyl

toxicity.

        A grand jury indicted defendants for conspiracy to distribute heroin and fentanyl, in

violation of 21 U.S.C. §§ 841(a)(1), 846 (count 1); conspiracy to distribute fentanyl resulting in

Brewer’s death, in violation of 21 U.S.C. §§ 841(a)(1), 846 (count 2); and conspiracy to

distribute fentanyl resulting in serious bodily injury to Silvia, in violation of 21 U.S.C.

§§ 841(a)(1), 846 (count 3). Pursuant to plea deals, defendants pleaded guilty to some counts in

exchange for the government dismissing the remainder: Westberry pleaded guilty to counts 1

and 2; Taylor pleaded guilty to count 1; and Robinson pleaded guilty to count 3.

        Westberry moved to withdraw his guilty plea four months later, which the district court

denied in a written order. It then sentenced Westberry to life in prison. Westberry does not

appeal his sentence. Instead, he claims the district court erred in denying his motion to withdraw

his guilty plea, and that he received ineffective assistance of counsel during plea proceedings.

        Robinson and Taylor appeal only their sentences. The district court sentenced them to

220 and 262 months of imprisonment, respectively. In crafting their sentences, the district court

                                                -2-
Nos. 16-6560, 17-5033, and 17-5220,
United States v. Robinson, et al.


heard testimony regarding the circumstances surrounding Sylvia’s near death and Brewer’s

death; on this basis, it departed upward under Guidelines §§ 5K2.1 and 5K2.21 (four levels for

Robinson and five for Taylor) because Brewer’s “death resulted” from their charged, but

dismissed, conduct. Robinson and Taylor specifically take issue with this departure, but they

also raise other challenges to their sentences—Taylor contends his sentence is substantively

unreasonable, and Robinson objects to the district court’s restitution order relating to the funeral

costs associated with Brewer’s death.

                                                II.

       We begin with the main issue in this consolidated appeal, the district court’s § 5K2

upward departures for Robinson and Taylor. U.S.S.G. § 5K2.1 provides that “[i]f death resulted,

the court may increase the sentence above the authorized guideline range.” The Guidelines also

contemplate upward departures “to reflect the actual seriousness of the offense based on conduct

(1) underlying a charge dismissed as part of a plea agreement in the case, . . . ; and (2) that did

not enter into the determination of the applicable guideline range.” § 5K2.21. Following an

evidentiary hearing, the district court concluded upward departures were appropriate for both

Robinson and Taylor because (1) it found Brewer’s death “resulted” from their conduct

(§ 5K2.1) and, (2) the Guidelines permitted consideration of Brewer’s death because the plea

agreements dismissed the count relating to his death and the death did not play a role in

determining the defendants’ Guidelines ranges (§ 5K2.21).

       We review a district court’s decision to upwardly depart in the same way we “judge the

procedural and substantive reasonableness of a variance from any guidelines range.” United

States v. Erpenbeck, 532 F.3d 423, 440 (6th Cir. 2008) (alterations and citation omitted). That is,

we apply the familiar abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 46

                                                -3-
Nos. 16-6560, 17-5033, and 17-5220,
United States v. Robinson, et al.


(2007). We review the district court’s factual findings for clear error and its legal conclusions de

novo. United States v. Bolds, 511 F.3d 568, 579 (6th Cir. 2007).

                                                A.

       First, Robinson and Taylor both contend the district court erred in upwardly departing by

utilizing judicial factfinding under the more relaxed preponderance-of-the-evidence standard

instead of the most demanding beyond-a-reasonable-doubt standard.           Their contentions run

headlong into existing adverse precedent.

       District courts may “consider dismissed and acquitted conduct when imposing sentences

below the statutory maximum.” United States v. Churn, 800 F.3d 768, 780 (6th Cir. 2015). It

has long been settled that the government must establish such enhancing conduct by a

preponderance of the evidence. See, e.g., United States v. Watts, 519 U.S. 148, 157 (1997) (per

curiam) (“[A] jury’s verdict of acquittal does not prevent the sentencing court from considering

conduct underlying the acquitted charge, so long as that conduct has been proved by a

preponderance of the evidence.”). Watts remains good law, see, e.g., United States v. White,

551 F.3d 381, 383–84 (6th Cir. 2008) (en banc), and applies equally to charged, but dismissed,

conduct. See United States v. Conway, 513 F.3d 640, 645–46 (6th Cir. 2008). “[S]o long as the

ultimate sentence falls with the statutory range,” as defendants’ sentences do under 21 U.S.C.

§ 841(b), “a defendant who enters a plea agreement . . . waives any constitutional right to a jury

determination of guilt or sentencing facts.” Conway, 513 F.3d at 646.

       This precedent notwithstanding, defendants claim Burrage v. United States, 134 S. Ct.

881 (2014), and United States v. Rebmann, 321 F.3d 540 (6th Cir. 2003), require “death results”

findings to be made by a jury beyond a reasonable doubt. However, those cases involved “death

results” enhancements that were part and parcel of the elements of the convicted offense. See

                                                -4-
Nos. 16-6560, 17-5033, and 17-5220,
United States v. Robinson, et al.


Burrage, 134 S. Ct. at 887 (21 U.S.C. § 841(b)’s statutory enhancement); Rebmann, 321 F.3d at

543 (U.S.S.G. § 2D1.1(a)’s base offense levels).1 That is not what we have here; rather, the

district court enhanced defendants’ Guidelines ranges on the basis of relevant and not offense

conduct. Accordingly, we decline defendants’ invitations to do what we cannot do—disagree

with the Supreme Court in Watts, the en banc court in White, and the panel in Conway.

                                                   B.

        Taylor raises a separate challenge to the district court’s upward departure. Following the

lead of several (but not all) of our sister circuits, Taylor argues § 5K2.1’s “death resulted”

enhancement required the district court to find Brewer’s death was either “intended” or

“knowingly risked.” See, e.g., United States v. White, 979 F.2d 539, 544–45 (7th Cir. 1992).

Because Taylor failed to raise this argument below, we review for plain error.2 United States v.

Yancy, 725 F.3d 596, 600 (6th Cir. 2013). This demanding standard requires Taylor to establish

(1) error, (2) that is plain, (3) that affects his substantial rights, and (4) that seriously affects the

fairness, integrity, or public reputation of the judicial proceedings. Id. at 601. He cannot.

        For one, a “court of appeals cannot correct an error . . . unless the error is clear under

current law.” United States v. Olano, 507 U.S. 725, 734 (1993). A lack of precedent “preclude[s

a] finding of plain error.” United States v. Al-Maliki, 787 F.3d 784, 794 (6th Cir. 2015). As does

a circuit split. Id. Here, there was (and still is) no binding Sixth Circuit or Supreme Court

        1
        This point also distinguishes Robinson’s reliance upon a Seventh Circuit case involving
drug-quantity enhancements for a convicted offense under the Guidelines post-Booker. See
United States v. Macedo, 406 F.3d 778, 788 (7th Cir. 2005).
        2
         Taylor concedes he failed to raise this issue below, but nonetheless argues we should
exercise our discretion under the general rule that we do not review issues raised for the first
time on appeal, and consider his argument de novo. However, this request conflates the plain-
error review standard with our general forfeiture principles. See, e.g., Thomas M. Cooley Law
Sch. v. Kurzon Strauss, LLP, 759 F.3d 522, 528–29 (6th Cir. 2014).
                                                  -5-
Nos. 16-6560, 17-5033, and 17-5220,
United States v. Robinson, et al.


precedent requiring a district court to make an “intended” or “knowingly risked” factual finding,

and our sister circuits appear to be in discord. Compare White, 979 F.2d at 544–45, with United

States v. Bayles, 1993 WL 46892, at *3 n.1 (4th Cir. 1993) (per curiam) (disagreeing with

White). These two independent considerations dictate a no-plain-error finding.

         And even were we to adopt Taylor’s standard, we cannot agree the purported error would

affect Taylor’s substantial rights. After all, the district court expressly found Taylor knew “that

injuries and death were resulting from the product that was being distributed” and yet continued

to distribute drugs “notwithstanding that risk that was known.” The record reflects this: The

district court heard testimony from the DEA agent who interrogated Taylor following his arrest,

in which the agent recounted Taylor “mention[ed] that he knew [the drugs were] killing people,”

that Taylor “knew this was wrong,” that he “knew people were dying,” and that Brewer’s fatal

fentanyl came downstream from Taylor’s supply. Put differently, the district court’s factual

findings were not clearly erroneous, with or without considering Taylor’s requested “intentional

or knowingly risked” standard. See United States v. Salyers, 661 F. App’x 862, 866 (6th Cir.

2016).

                                                C.

         Robinson’s initial brief also hinted at challenging the upward departure because “[t]he

statute as well as the guidelines had already taken death and serious bodily injury into account in

determining the appropriate sentence.” Because Robinson failed to develop this point in his

brief, we deem it abandoned, see Vander Boegh v. EnergySolutions, Inc., 772 F.3d 1056, 1063




                                                -6-
Nos. 16-6560, 17-5033, and 17-5220,
United States v. Robinson, et al.


(6th Cir. 2014), and decline to revive it upon receipt of his slightly more developed, but still

underdeveloped, reply brief. See Sanborn v. Parker, 629 F.3d 554, 579 (6th Cir. 2010).3

                                                 III.

       Taylor’s final claim on appeal is that the district court imposed a substantively

unreasonable sentence, a claim which we review for abuse of discretion. See United States v.

Kamper, 748 F.3d 728, 739 (6th Cir. 2014).              A district court imposes a substantively

unreasonable sentence by “selecting the sentence arbitrarily, basing the sentence on

impermissible factors, failing to consider pertinent § 3553(a) factors, or giving an unreasonable

amount of weight to any pertinent factor.” United States v. Webb, 403 F.3d 373, 385 (6th Cir.

2005) (footnotes omitted). Mindful of our institutional limitations as a reviewing court, we

exercise “a great deal of deference” when reviewing a defendant’s sentence for substantive

reasonableness. United States v. Mayberry, 540 F.3d 506, 519 (6th Cir. 2008). Although we

apply a rebuttable presumption of reasonableness to within-Guidelines sentences, Gall, 552 U.S.

at 51, a sentence falling outside the Guidelines is not entitled to a presumption of

unreasonableness. Id. We may consider the extent of the district court’s deviation from the

advisory range, but still “must give due deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the [departure].” Id.



       3
         Moreover, Robinson’s argument is meritless. He pleaded guilty to conspiracy to
distribute fentanyl resulting in Silvia’s serious bodily injury under 21 U.S.C. §§ 841(a)(1), 846.
This carried a twenty-year minimum sentence term under § 841(b)(1)(C), which became his
Guidelines range. However, the district court based its upward departure on the dismissed count
of conspiracy to distribute fentanyl resulting in Brewer’s death, in violation of 21 U.S.C.
§§ 841(a)(1), 846, under §§ 5K1.1 and 5K1.21. Because this conduct “did not enter into the
determination of the applicable guideline range,” § 5K1.21(2), Robinson’s position is without
merit. We therefore deny the government’s Motion to Strike Argument I in Robinson’s Reply
Brief as moot.
                                                 -7-
Nos. 16-6560, 17-5033, and 17-5220,
United States v. Robinson, et al.


       Among other things, Taylor points to his youth, his relative lack of criminal history, and

his immediate acceptance of responsibility for why he should have received a sentence of less

than 220 months. But what he does not do is tell us why the district court abused its discretion in

imposing the sentence that it did, thus abandoning any such argument on appeal. Vander Boegh,

772 F.3d at 1063.

       Moreover, a review of Judge Reeves’s thorough sentencing hearing reveals these factors

were considered, and that one—Taylor’s cooperation—played a role in him receiving a sentence

on the lower end of the adjusted Guidelines range (210 to 240 months). This last point makes it

clear Taylor’s real concern here is not how the district court weighed the § 3553(a) factors, but

rather the district court’s upward departure in the first instance. Upon a deferential review of

Taylor’s sentencing, we take no issue with the district court’s 220-month sentence in light of the

district court’s reason for upwardly departing—Taylor’s dealing of heroin and fentanyl resulted

in the death of one person and the injury of others. See, e.g., United States v. Adkins, 729 F.3d

559, 571 (6th Cir. 2013) (“A district court may place great weight on one factor if such weight is

warranted under the facts of the case.”). The district court appropriately considered the advisory

nature of the Guidelines and the 240-month statutory maximum, credited Taylor for mitigating

factors, and imposed a reasonable sentence.

                                                      IV.

       The last sentencing aspect of this appeal is Robinson’s terse challenge to the district

court’s imposition of $4,190 in restitution, which represents Brewer’s funeral expenses. Because

Robinson challenges the propriety of this award, our review is de novo. United States v.

Sizemore, 850 F.3d 821, 824 (6th Cir. 2017).



                                                -8-
Nos. 16-6560, 17-5033, and 17-5220,
United States v. Robinson, et al.


       Robinson’s argument, in total, is as follows:

       The District Court erred in finding the Defendant responsible for restitution in
       relation to a dismissed charge, Count 2 of the Indictment in the amount of four
       thousand one hundred ninety dollars ($4,190.00). The initial Presentence
       Investigation Report did not include the monetary penalty; but was included after
       the time for objections had passed. The monetary penalty is related to Count 2 of
       the Indictment that was dismissed against the Defendant/Appellant and is
       representative of expenses related to the death of C.B. The Defendant/Appellant
       did not enter a plea to Count 2 of the Indictment and therefore should not be held
       responsible for a monetary penalty related to Count 2.

(And in response to the government’s well-reasoned response, Robinson’s counsel submitted

identical language in reply).4 Such a curt and unexplained position, which fails to advance “any

sort of argument for the reversal of the district court[],” Geboy v. Brigano, 489 F.3d 752, 767

(6th Cir. 2007), or “cogent” the-district-court-got-it-wrong analysis, “constitutes abandonment.”

Burley v. Gagacki, 834 F.3d 606, 618 (6th Cir. 2016); see also White Oak Prop. Dev., LLC v.

Washington Twp., 606 F.3d 842, 850 (6th Cir. 2010) (noting a “perfunctory” and “nebulous”

argument renders an issue forfeited).

       Abandonment notwithstanding, Robinson’s argument borders on frivolity. Under the

Mandatory Victims Restitution Act, “if someone is convicted of a conspiracy, the court can order

restitution for damage resulting from any conduct that was part of the conspiracy and not just

from specific conduct that met the overt act requirement of the conspiracy conviction.” United

States v. Elson, 577 F.3d 713, 723 (6th Cir. 2009) (citation omitted). It may not, however,

include “injuries caused by offenses that are not part of the conspiracy of which the defendant

has been convicted.” Id. (brackets and citation omitted). Here, the district court permissibly

concluded Brewer’s death resulted from the conspirators’ conduct, and Robinson agreed that he


       4
        We acknowledge Robinson did object to the imposition of restitution on these grounds,
which the district court overruled.
                                               -9-
Nos. 16-6560, 17-5033, and 17-5220,
United States v. Robinson, et al.


conspired to distribute fentanyl in Kentucky during the time period encompassing Brewer’s

death. Therefore, the district court properly imposed restitution under 18 U.S.C. § 3663A. Id. at

723–24.

                                                 V.

       Finally, defendant Westberry raises two related non-sentencing claims on appeal.

Westberry contends the district court abused its discretion when it denied his motion to withdraw

his guilty plea, and that his attorney provided him constitutionally deficient performance during

the plea stages.5 We affirm the district court’s denial of Westberry’s motion to withdraw, and

decline to address his ineffective-assistance claim.

                                                 A.

       We review a district court’s decision denying a motion to withdraw a guilty plea for an

abuse of discretion. United States v. Benton, 639 F.3d 723, 726–27 (6th Cir. 2011). A district

court abuses its discretion when it “relies on erroneous findings of fact, applies the wrong legal

standard, misapplies the correct legal standard when reaching a conclusion, or makes a clear

error of judgment.” Reeb v. Ohio Dep’t of Rehab. & Corr., 435 F.3d 639, 644 (6th Cir. 2006).

       It is well-established that “[a] defendant has no right to withdraw his guilty plea.” United

States v. Martin, 668 F.3d 787, 794 (6th Cir. 2012). Instead, Federal Rule of Criminal Procedure

11 permits the withdrawal of an accepted guilty plea upon a showing of a “fair and just reason

for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). “[T]he aim of the rule is to allow

a hastily entered plea made with unsure heart and confused mind to be undone, not to allow a


       5
        Under the terms of his plea agreement, Westberry waived his “right to appeal the guilty
plea and conviction.” However, the government does not seek to enforce this appeal bar because
Westberry’s challenge amounts to a claim that his plea was neither knowing nor voluntary on
account of ineffective assistance of counsel.
                                                -10-
Nos. 16-6560, 17-5033, and 17-5220,
United States v. Robinson, et al.


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.

Alexander, 948 F.2d 1002, 1004 (6th Cir. 1991) (citation and internal quotation marks omitted).

In examining this “fair and just reason” standard, we consider the totality of the circumstances,

including the following seven factors set forth in United States v. Bashara:

       (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.

27 F.3d 1174, 1181 (6th Cir. 1994). “The 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).

“The relevance of each factor will vary according to the circumstances surrounding the original

entrance of the plea as well as the motion to withdraw.” United States v. Haygood, 549 F.3d

1049, 1052 (6th Cir. 2008) (citation and internal quotation marks omitted).

       Following his December 2015 indictment, Westberry and the government began plea

negotiations. The parties eventually came to an agreement, and brought it before the district

court on June 24, 2016, for a rearraignment and change-of-plea hearing. However, the district

court adjourned the hearing after Westberry indicated he did not “understand the process,” was

“anxious,” and had a hard time comprehending the proceeding.

       On August 15, 2016, Westberry reappeared before the district court and entered a guilty

plea to conspiracy to distribute heroin and fentanyl, in violation of 21 U.S.C. §§ 841(a)(1), 846,

(count 1) and conspiracy to distribute fentanyl resulting in Brewer’s death, in violation of

21 U.S.C. §§ 841(a)(1), 846 (count 2). Before taking the plea, the district court confirmed,

                                               -11-
Nos. 16-6560, 17-5033, and 17-5220,
United States v. Robinson, et al.


among other things, Westberry’s educational background, his mental-health history, and his

history of drug and alcohol use. Westberry agreed he understood the charges against him,

indicated he was satisfied with his attorney’s advice and performance, and acknowledged he had

read and understood the terms of his plea agreement. As pertinent for his claim on appeal,

Westberry admitted that he distributed fentanyl that resulted in Brewer’s death (but contended he

believed it was heroin). The district court then accepted his guilty plea.

       A week later, Westberry’s attorney moved to withdraw as counsel. Among other reasons,

she claimed that, “after Mr. Westberry’s entry of a plea, he called challenging the actions of

counsel and the validity of the plea.” The district court conducted a hearing on August 29, 2016,

and allowed Westberry’s attorney to withdraw. During the hearing, Westberry indicated his

dissatisfaction with his counsel for not pursuing a medical expert to test the validity of the link

between the fentanyl taken by Brewer and his death. He essentially requested an evidentiary

hearing on Brewer’s cause of death. Yet, when asked whether he anticipated requesting to

withdraw his guilty plea, Westberry responded that “I never wanted to withdraw my guilty plea.”

       More than three months after indicating to the contrary, Westberry then moved to

withdraw his plea on December 6, 2016. In support, Westberry blamed his former attorney’s

lack of attention to his case, faulted her for not pursuing a medical expert, claimed he agreed to

plead guilty because he “was overwhelmed with fear and confusion,” and contended his

counsel’s failures left him with no choice but to plead guilty. For the first time, he also espoused

his innocence. At a hearing on his motion, Westberry tried to justify the delay in filing his

motion to withdraw on the basis that he was trying to secure money to hire a medical expert,

claimed he was under the influence of Xanax during his plea hearing, and argued he had

expected to have an evidentiary hearing regarding Brewer’s cause of death.

                                                -12-
Nos. 16-6560, 17-5033, and 17-5220,
United States v. Robinson, et al.


       The district court denied Westberry’s motion in a comprehensive and well-reasoned

written order. It concluded Westberry “wholly failed to establish any legitimate reason which

would justify setting aside his prior guilty plea,” finding none of the Bashara factors weighed in

his favor. First, 112 days had elapsed between his guilty plea and his motion. Second, the

district court rejected Westberry’s reasons for his failure to timely move for withdrawal, noting

his attorney’s performance and the medical-expert issue were known to Westberry before he

pleaded guilty and that he expressly disavowed a plea-withdrawal motion two weeks after.

Third, Westberry did not maintain his innocence over the course of the proceedings. Fourth, the

district court concluded the circumstances of Westberry’s plea entry did not justify relief, again

noting Westberry could have raised his concerns earlier and accepting Westberry’s new position

would require the court to discard his earlier statements under oath that he understood what he

was pleading to (and after the court gave Westberry an additional month to consider the plea

offer). Fifth, it found Westberry’s background did not support a claim that he was unable to

understand the proceedings, and sixth, concluded his prior, relevant experience with the criminal

justice system suggested he understood the nature of the process and was aware of the

consequences of his plea.

       These conclusions are well-supported in the record and in our case law. Take, for

example, the district court’s conclusion regarding the length and explanation for the delay.

Westberry waited over one hundred days to file his motion, and “[w]e have consistently found

shorter periods to be excessive.” Martin, 668 F.3d at 795 (collecting cases, and noting a delay of

ninety-five days “weigh[ed] against withdrawal”). Nor do we take issue with the district court’s

finding that Westberry knew about the issues supporting his motion before he pleaded guilty, or

fault the district court for relying upon Westberry’s post-plea assertion that he did not want to

                                              -13-
Nos. 16-6560, 17-5033, and 17-5220,
United States v. Robinson, et al.


change his plea in light of the same issues. And more to the point, “[w]hen a defendant has

entered a knowing and voluntary plea of guilty at a hearing at which he acknowledged

committing the crime, the occasion of setting aside a guilty plea should seldom arise.” United

States v. Ellis, 470 F.3d 275, 280 (6th Cir. 2006) (citation omitted). As the district court ably

considered Westberry’s motion, we agree this case does not present such a rare circumstance.

For these reasons, and for those articulated by the district court, the district court did not abuse

its discretion in concluding the Bashara factors did not support the withdrawal of a guilty plea.

                                                 B.

       Westberry also faults the district court for “fail[ing] to address the apparent violation of

Appellant’s right to the effective assistance of counsel.” In his view, his attorney failed to

provide an adequate defense during plea negotiations because she did not adequately investigate

the circumstances surrounding Brewer’s death (Westberry argues there is a possibility something

other than fentanyl killed Brewer) and that but for his attorney’s failures, he “would have never

entered the plea agreement.”

       Our typical approach to ineffective-assistance claims on direct appeal is to decline to

address such claims unless “trial counsel’s ineffectiveness is apparent from the record.” Martin,

668 F.3d at 797. We see no reason to deviate from that approach here, because the record is

woefully deficient and counsel’s ineffectiveness is not apparent. The district court held no

evidentiary hearing regarding a claim of ineffective assistance of counsel; indeed, there is little in

the record regarding the medical-testing issue, and more importantly, his prior attorney did not

testify. See, e.g., United States v. Sypher, 684 F.3d 622, 626 (6th Cir. 2012). And there is good

reason why the record is undeveloped for an ineffective-assistance claim—Westberry never



                                                -14-
Nos. 16-6560, 17-5033, and 17-5220,
United States v. Robinson, et al.


expressly raised one below. See United States v. Levenderis, 806 F.3d 390, 401–02 (6th Cir.

2015). We therefore decline to address his ineffective-assistance claim in this direct appeal.

                                                VI.

       For these reasons, we affirm the district court’s judgments.




                                               -15-
