                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 13a0019p.06

                UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                X
                           Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                     Nos. 11-6303/6305
          v.
                                                 ,
                                                  >
                                                 -
                        Defendant-Appellant. -
 ERNEST CATCHINGS,
                                                N
                   Appeal from the United States District Court
                for the Western District of Tennessee at Memphis.
         No. 2:09-cr-20376-1—Jon Phipps McCalla, Chief District Judge.
                                  Argued: December 6, 2012
                           Decided and Filed: January 15, 2013
   Before: MOORE and COOK, Circuit Judges; BERTELSMAN, District Judge.*

                                      _________________

                                           COUNSEL
ARGUED: Christian J. Grostic, KUSHNER & HAMED CO., L.P.A, Cleveland, Ohio,
for Appellant in Cases 11-6303 and 11-6305. Stephen P. Hall, UNITED STATES
ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee. ON BRIEF: Christian
J. Grostic, KUSHNER & HAMED CO., L.P.A, Cleveland, Ohio, for Appellant in Case
11-6305. Stephen P. Hall, UNITED STATES ATTORNEY’S OFFICE, Memphis,
Tennessee, for Appellee. Ernest Catchings, Memphis, Tennessee, pro se, in Case 11-
6303.
                                      _________________

                                            OPINION
                                      _________________

        KAREN NELSON MOORE, Circuit Judge. Relevant conduct under United
States Sentencing Guidelines (U.S.S.G.) § 1B1.3 must be criminal conduct. If not, such


        *
        The Honorable William O. Bertelsman, United States District Judge for the Eastern District of
Kentucky, sitting by designation.


                                                 1
Nos. 11-6303/6305       United States v. Catchings                                  Page 2


conduct is not relevant for the purpose of calculating a defendant’s Guidelines range.
In this appeal, we consider whether the district court included non-criminal conduct as
relevant conduct when it sentenced defendant-appellant, Ernest Catchings.

       Catchings pleaded guilty to one count of identity theft. In essence, Catchings
fraudulently opened personal credit-card accounts using his former clients’ personal
information without their knowledge. When calculating the amount of loss pursuant to
U.S.S.G. § 2B1.1(b)(1), district courts include losses stemming from relevant conduct
under § 1B1.3. In this case, the district court included in its calculation losses stemming
from credit cards that were in the name of U.S. Investments & Construction, a business
that Catchings started with a friend. Catchings contends that the U.S. Investments
& Construction credit cards were not obtained or used in violation of criminal law.
Therefore, according to Catchings, the district court erred in including those losses when
calculating his Guidelines range. We agree.

       In addition to the arguments regarding his sentence, Catchings claims that his
guilty plea was not entered knowingly or voluntarily and that the district court erred in
denying his motion to withdraw his guilty plea. We disagree. Therefore, we AFFIRM
the judgment of conviction of the district court and its denial of Catchings’s motion to
withdraw his guilty plea; however, we VACATE his sentence and REMAND the case
for resentencing in accordance with this opinion.

                                  I. BACKGROUND

       On September 23, 2009, a grand jury returned an indictment charging Catchings
with using and attempting to use unauthorized access devices with intent to defraud, in
violation of 18 U.S.C. § 1029(a)(2) and (b)(1). R. 1 (Indict. at 1–2) (Page ID #1–2). On
November 4, 2010, another grand jury returned a superseding indictment that added a
charge of knowingly possessing and using without lawful authority a means of
identification of another person with the intent to commit forgery and fraudulent use of
credit cards over $500, in violation of 18 U.S.C. § 1028(a)(7). R. 41 (Super. Indict. at
3) (Page ID #51). On November 15, 2010, Catchings pleaded guilty to the added charge
Nos. 11-6303/6305           United States v. Catchings                            Page 3


in the superseding indictment, and the government agreed to dismiss the first charge
pursuant to a plea agreement. R. 114 (Change of Plea Hr’g Tr. at 32) (Page ID #903);
R. 51 (Plea Agreement at 1–2) (Page ID #63–64).

       After pleading guilty, Catchings filed a motion to dismiss counsel and another
motion to have new counsel appointed. R. 53 (Mot. to Dismiss Counsel) (Page ID
#69–71); R. 52 (Mot. for Appt. of Counsel) (Page ID #66–68). Catchings’s counsel also
filed a motion to withdraw at Catchings’s request. R. 54 (Mot. to Withdraw as Counsel)
(Page ID #72–74). Catchings then decided that he wanted to proceed pro se with his
counsel staying on as “elbow counsel.” R. 110 (Mot. Hr’g at 6) (Page ID #636). The
district court warned Catchings of the dangers of proceeding pro se, but ultimately
allowed him to do so. Id. at 6–9 (Page ID #636–639).

       On February 8, 2011, two days prior to the first scheduled date of his sentencing
hearing, Catchings filed a motion to withdraw his guilty plea.1 In that motion, Catchings
asserted that his guilty plea was “unfairly obtained or given through ignorance, fear, or
inadvertence.” R. 69 (Mot. to Withdraw Plea at 1) (Page ID #105). Catchings also
claimed that he was induced by his attorney to plead guilty “by the promise that
prosecution would not oppose a bond hearing [a]nd [the] government would recommend
to dismiss count 1 of the indictment.” Id. He then filed a “Motion to Dismiss Elbow
Counsel” and an addendum to his motion to withdraw his guilty plea that discussed his
dissatisfaction with his counsel. R. 72 (Mot. to Dismiss Elbow Counsel) (Page ID
#110–12); R. 73 (Addendum to Plea Withdrawal) (Page ID #113–17).

       Catchings’s first scheduled date for sentencing was pushed back to March 11,
2011. At that hearing, the district court denied Catchings’s motion to withdraw his
guilty plea because it was “untimely, and there’s not been any indication that [his plea]
was not knowingly and voluntarily entered.” R. 111 (3/11/2011 Sentencing Hr’g Tr. at
6) (Page ID #655). Catchings decided at that time to reinstate his counsel to represent
him fully, which the court accepted. Id. at 24, 27–28 (Page ID #673, 676–77). The court


       1
           Catchings dated the motion January 18, 2011.
Nos. 11-6303/6305            United States v. Catchings                                           Page 4


also granted Catchings’s request to push back the date of his sentencing hearing so that
his newly reinstated counsel could prepare. Id. at 24–27 (Page ID #673–76).

         According to the Presentence Investigation Report (“PSR”), Catchings ran a
business helping people obtain mortgages and later used his former clients’ information
fraudulently to obtain credit cards and to open utility accounts in their names. PSR
¶¶ 9–30 (listing the accounts, whose name they were in, and the losses sustained). The
PSR details the monetary losses that were caused as a result of Catchings fraudulently
opening cards and accounts. Included in those losses is $38,197.81 to Bank of America
from cards opened in the name of “U.S. Investments & Construction.”2 Id. at ¶ 19.
Catchings objected to the PSR’s inclusion of the losses from the U.S. Investments &
Construction credit cards because they were legitimate credit cards used for legitimate
business transactions. R. 83 (Am. Def.’s Objections to Sentencing Factors at 2) (Page
ID #456). U.S. Investments & Construction was a real-estate business started by
Catchings and a former friend and client, Ronald McCoy. PSR ¶ 20. With the inclusion
of the U.S. Investments & Construction credit cards, the PSR states that Catchings
caused a loss that was greater than $70,000 but less than $120,000, resulting in a eight-
level increase to Catchings’s base offense level pursuant to U.S.S.G. § 2B1.1(b)(1)(E).
PSR at ¶ 36.

         At Catchings’s final sentencing hearing on September 29, 2011, the district court
heard testimony from Catchings’s former business partner, McCoy.                              On direct
examination, McCoy testified that he and Catchings obtained credits cards for the
purpose of furthering their business, U.S. Investments & Construction, but that McCoy
did not intend or authorize the cards to be used for any personal expenditures. R. 112
(9/29/2011 Sentencing Hr’g Tr. at 89–91) (Page ID #772–74). McCoy further testified
that he did not authorize cash withdrawals to be made from the cards and that he had no
notice of the charges that were made on the credit cards, for which he would not have
given permission. Id. at 91–92 (Page ID #774–75). McCoy also stated that, when he

         2
          Evidence of four specific charges to these cards was presented at sentencing: a payment of a cell
phone bill, a purchase at Walgreens, and two online banking advances. R. 75-6 (Loss Statements at 80)
(Page ID #411).
Nos. 11-6303/6305       United States v. Catchings                                    Page 5


visited a property that he and Catchings purchased, people were upset with him because
they were told that McCoy was not paying the mortgage and that McCoy was using
drugs. Id. at 93 (Page ID #776). McCoy explained that this was simply untrue and that
he gave money to Catchings to pay the mortgage. Id.

       On cross examination, McCoy said that he relied on Catchings to “take care of
everything” and that it was possible that McCoy signed papers to obtain the credit cards.
Id. at 97–98 (Page ID #780–81). McCoy testified that he remembered a credit card, but
he and Catchings never used it. Id. at 100 (Page ID #783). McCoy also said that both
he and Catchings were responsible for purchasing supplies to make repairs on homes that
they purchased and that Catchings was authorized to sign on behalf of U.S. Investments
& Construction as president of the company. Id. at 99–101 (Page ID #782–84).

       On redirect examination, McCoy said that it was not his intention to have the
credit cards used at all; rather, McCoy testified that “to make the business strong, we
needed the credit.” Id. at 102 (Page ID #785). He then confirmed his earlier testimony
that he had no knowledge of the purchases or cash withdrawals and that he did not
authorize those transactions. Id. at 102–03 (Page ID #785–86).

       The district court found:

       The testimony of Mr. McCoy was . . . persuasive and consistent with the
       government’s theory. Mr. Catchings, it appears, was engaging in the
       activity of taking either information from good friends or people whom
       he could clearly overreach in the process of obtaining credit . . . . In
       2007, [Catchings and McCoy] went into business. It was clear, however,
       they did not go into business for the purpose of providing Mr. Catchings
       with a way to pay his personal obligations. . . . Mr. McCoy was trusting
       and overly trusting in the case, but hindsight is 20/20. Our society
       doesn’t require a person to have unusual suspicion of their friends, or
       even people they don’t know well. There’s generally a presumption that
       people will not engage in illegal conduct. . . . [McCoy] did not intend to
       obtain personal credit cards, and he testified to that effect. And while we
       might speculate that that might have occurred, we don’t know. The
       witness clearly didn’t intend to do that, and there’s really no proof that
       he, in fact, did in any way intend to obtain credit cards for the defendant.
       . . . So really as to . . . Mr. McCoy, [his] testimony clearly supports the
       government’s contention.
Nos. 11-6303/6305            United States v. Catchings                                             Page 6


R. 112 (9/29/2011 Sentencing Hr’g Tr. at 131–33) (Page ID #814–16).

         The district court then adopted the finding in the PSR that the loss amount was
greater than $70,000 but less than $120,000, stating that “the court clearly finds—or
finds that the evidence clearly—frankly overwhelming supports the conclusion that the
[loss] amount is in excess of $70,000.” Id. at 136, 130, 148 (Page ID #819, 813, 831).
After other adjustments, Catchings’s total offense level became twenty. Combined with
his criminal history category of III, Catchings’s Guidelines range became forty-one to
fifty-one months of imprisonment. The district court imposed a sentence of fifty-one
months of imprisonment and ordered restitution in the amount of $77,271.70. R. 94
(Judgment) (Page ID #493–500); R. 112 (9/29/2011 Sentencing Hr’g Tr. at 169–72)
(Page ID #852–55).

         Catchings filed two timely notices of appeal that were docketed separately. In
No. 11-6303, Catchings filed a pro se brief and argues that his guilty plea was not
entered knowingly or voluntarily. He also asserts that the district court erred in denying
his motion to withdraw his guilty plea. In No. 11-6305, in which Catchings is
represented by counsel, he claims that the district court erred in its calculation of loss
amount under the Guidelines. These appeals were consolidated, and Catchings’s counsel
argued both cases at oral argument. We address each of Catchings’s arguments in turn.3

             II. KNOWING, VOLUNTARY, AND INTELLIGENT PLEA

         Catchings argues that his plea was not entered knowingly or voluntarily because
his attorney misled him into signing a plea agreement by assuring Catchings that he
would receive probation. 11-6303 Appellant Br. at 5–6. Catchings also argues that his

         3
           In his pro se brief, Catchings appears to raise two additional issues that can be disposed of
summarily. First, Catchings argues that he received ineffective assistance of counsel at his change of plea
hearing and at his sentencing hearing. 11-6303 Appellant Br. at 13. We decline to entertain this claim
because it is not ripe for review with an undeveloped record. See United States v. Franco, 484 F.3d 347,
355 (6th Cir. 2007). Furthermore, this court has a general rule to refrain from ruling on ineffective-
assistance-of-counsel claims on direct appeal because they are more properly raised in a post-conviction
proceeding under 28 U.S.C. § 2255. Id. Second, Catchings asserts that the district court lacked subject-
matter jurisdiction because the search warrants were invalid. 11-6303 Appellant Br. at 17–18. The
connection between the validity of the search warrants and jurisdiction is unclear, and this appears to be
an attempt to couch an attack on the validity of the search warrants by framing it as a jurisdictional issue.
Regardless, the district court had jurisdiction under 18 U.S.C. § 3231, and Catchings waived his challenge
to the search warrants when he pleaded guilty. See Tollett v. Henderson, 411 U.S. 258, 267 (1973).
Nos. 11-6303/6305        United States v. Catchings                                   Page 7


plea was not knowing or voluntary because the district court failed to comply with
Federal Rule of Criminal Procedure 11 (“Rule 11”) when it accepted his guilty plea. Id.
at 9–12. Catchings’s arguments are not persuasive because there is nothing in the record
that would lead us to believe that Catchings’s plea was not entered knowingly,
voluntarily, or intelligently.

        We review de novo whether a defendant’s plea was entered knowingly,
voluntarily, and intelligently; however, “[t]he underlying factual bases relied upon by
the district court are reviewed for clear error.” United States v. Dixon, 479 F.3d 431,
434 (6th Cir. 2007). “When a defendant fails to object contemporaneously to the district
court’s alleged failure to comply with the requirements of Rule 11, we review for ‘plain
error.’” United States v. Webb, 403 F.3d 373, 378 (6th Cir. 2005) (quoting United States
v. Vonn, 535 U.S. 55, 59 (2002)). Under this review, “the burden is on the defendant to
show that but for the error, he would not have pleaded guilty.” United States v. Martin,
668 F.3d 787, 791 (6th Cir. 2012).

        “A guilty plea is valid if it is entered knowingly, voluntarily, and intelligently by
the defendant.” Dixon, 479 F.3d at 434. “Rule 11 is meant to ensure that the district
court is satisfied that the defendant’s plea is knowing, voluntary, and intelligent.” Webb,
403 F.3d at 378. Under Rule 11, the district court verifies that the defendant is pleading
voluntarily and “that the defendant understands his or her applicable constitutional
rights, the nature of the crime charged, the consequences of the guilty plea, and the
factual basis for concluding that the defendant committed the crime charged.” Id. at
378–79.

        At Catchings’s sentencing hearing, the district court found no indication in the
record that Catchings’s plea was not entered knowingly or voluntarily.               R. 111
(3/11/2011 Sentencing Hr’g Tr. at 6) (Page ID #655). Reviewing the record ourselves,
we agree. There is simply nothing in the record that would lead us to conclude that
Catchings’s plea was anything but knowing, voluntary, and intelligent. See R. 114
(Change of Plea Hr’g at 4–32) (Page ID #875–903). Catchings’s assertion that he
pleaded guilty based on the assurances of his attorney that he would receive probation
Nos. 11-6303/6305       United States v. Catchings                                  Page 8


finds no support in the record. At his change-of-plea hearing, Catchings was informed
that the count to which he was pleading guilty carried a maximum penalty of fifteen
years of imprisonment. Id. at 20 (Page ID #891). His plea agreement states that the
government would “recommend that [Catchings] be sentenced to no more than the
midrange of the applicable advisory sentencing guideline range as determined by the
Court.” R. 51 (Plea Agreement at 2) (Page ID #64). Catchings was certainly aware that
the charge to which he was pleading guilty carried a potential term of imprisonment, and
he has not pointed to any other facts that would lead us to conclude that his
understanding was any different.

       Catchings’s arguments regarding the district court’s alleged failure to comply
with Federal Rule of Criminal Procedure 11 are similarly unfounded and unavailing. In
his pro se brief, Catchings quotes various portions of Rule 11, but he fails to point to
anything in the record that shows that the district court did not comply with Rule 11. In
fact, the record shows that district court followed the requirements of Rule 11 quite
literally. See R. 114 (Change of Plea Hr’g at 4–32) (Page ID# 875–903). For example,
the district court determined that Catchings was competent to enter a guilty plea, id. at
4–8, 32 (Page ID #875–79, 903), and Catchings stated that he was pleading guilty of his
own free will because he was, in fact, guilty, id. at 19–20 (Page ID #890–91).
Catchings’s claims are simply without merit. Therefore, we hold that Catchings’s guilty
plea was entered knowingly, voluntarily, and intelligently, and that the district court did
not commit plain error in following the requirements of Rule 11.

                             III. PLEA WITHDRAWAL

       In his motion to withdraw his guilty plea, Catchings claimed that his plea was
“unfairly obtained or given through ignorance, fear, or inadvertence.” R. 69 (Mot. to
Withdraw Plea at 1) (Page ID #105). Although far from clear, Catchings seems to have
argued that his counsel was ineffective by inducing Catchings to plead guilty with the
promise that his release on bond would not be opposed and by failing to explain the
consequences of a guilty plea. Id.; R. 73 (Addendum to Plea Withdrawal) (Page ID
#113–17). The district court denied Catchings’s motion to withdraw his guilty plea,
Nos. 11-6303/6305            United States v. Catchings                                             Page 9


finding that it was untimely and without merit.4 R. 111 (3/11/2011 Sentencing Hr’g Tr.
at 6) (Page ID #655). Id. On appeal, Catchings argues that the district court erred in
denying his motion by failing comply with Rule 11 and by not considering his allegation
that counsel was ineffective before denying the motion. These arguments lack support
in the record; therefore, we affirm the district court’s denial of Catchings’s motion to
withdraw his guilty plea.

         We review for abuse of discretion the district court’s denial of a motion to
withdraw a guilty plea. United States v. Wynn, 663 F.3d 847, 849 (6th Cir. 2011). “A
district court abuses its discretion where it relies on clearly erroneous findings of fact,
or when it improperly applies the law or uses an erroneous legal standard.” United
States v. Haygood, 549 F.3d 1049, 1052 (6th Cir. 2008) (quotation marks and citation
omitted).

         Under Rule 11(d), a defendant may withdraw a guilty plea if “the defendant
can show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P.
11(d)(2)(B). In making the determination of whether the defendant has shown a “fair
and just reason,” we consider the totality of the circumstances, including the 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). These 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)


         4
          The district court also noted that this motion appears to be filed as part of Catchings’s tactic of
contesting everything to delay his case. R. 111 (9/29/2011 Sentencing Hr’g Tr. at 6) (Page ID #655).
Although criminal defendants are certainly entitled to make any arguments they wish, we acknowledge
that the district court did a commendable job of managing Catchings’s various pro se motions and
arguments.
Nos. 11-6303/6305       United States v. Catchings                                 Page 10


(per curiam). Our examination of these factors in this case buttresses our conclusion that
the district court did not abuse its discretion in denying Catchings’s motion to withdraw
his guilty plea because Catchings did not offer a fair and just reason that finds support
in the record.

        1. Length of delay. Catchings waited over two months after pleading guilty to
file his motion to withdraw his guilty plea. We have consistently determined that shorter
delays weigh against withdrawal; therefore, this factor weighs against Catchings’s
attempt to withdraw his plea. See United States v. Benton, 639 F.3d 723, 727 (6th Cir.
2011) (collecting cases regarding the amount of delay and noting that “[t]his Court has
declined to allow plea withdrawal when intervening time periods were as brief as one
month”); see also United States v. Martin, 668 F.3d 787, 795 (6th Cir. 2012) (collecting
cases regarding the amount of delay).

        2. Validity of Catchings’s reason for failing to move for withdrawal earlier.
Catchings claims that he asked his attorney to file his motion to withdraw his guilty plea
five days after he pleaded guilty. 11-6303 Appellant Br. at 15–16. Catchings has not
pointed to any evidence in the record that supports this contention. We note, however,
that Catchings did date his motion for plea withdrawal January 18, 2011, which was only
five days after he was permitted to proceed pro se. Although this is some indication that
Catchings himself might not have caused the delay, we are not convinced that he was
unable to express his intention to withdraw his guilty plea prior to being permitted to
proceed pro se.

        At the hearing on his motion to dismiss his counsel, Catchings alluded to the fact
that he would not have pleaded guilty if he had known that his relevant conduct could
be considered in determining his sentence. R. 109 (Mot. Hr’g at 21) (Page ID #610).
Catchings did not, however, assert that he instructed his counsel to file a motion to
withdraw his guilty plea. Instead, he voiced his dissatisfaction with his attorney’s failure
to request a bond hearing. Id. at 6–11 (Page ID #595–600). We also note that Catchings
did not present his reason for delay in his original motion to withdraw his plea or in the
addendum to that motion, which he filed later. Without any evidence supporting his
Nos. 11-6303/6305           United States v. Catchings                                          Page 11


contention that he asked his attorney to file a motion to withdraw his guilty plea,
Catchings has failed to present a valid excuse for his delay in filing his motion to
withdraw his plea.

         3. Catchings’s innocence. The third factor also weighs against Catchings
because he pleaded guilty, affirming that he was, in fact, guilty, and has not asserted that
he is innocent. R. 114 (Change of Plea Hr’g Tr. at 32) (Page ID #903); R. 51
(Plea Agreement at 1–2) (Page ID #63–64); see 11-6303 Appellant Br. at 9
(“Now withdrawing [my] plea doesn’t necessarily mean that I am innocent . . . .”).

         4. Circumstances underlying the entry of Catchings’s guilty plea. In considering
the circumstances underlying the entry of the guilty plea, we note, as discussed in Part
II of this opinion, that the district court complied with Rule 11 and that Catchings
knowingly, voluntarily, and intelligently pleaded guilty with a full understanding of his
rights and the consequences of his plea.5 See R. 114 (Change of Plea Hr’g at 4–32)
(Page ID #875–903). Therefore, the fourth factor supports the denial of Catchings’s
motion to withdraw his guilty plea.

         5. Catchings’s nature and background. Catchings attended college for several
years, and he reports having various professional licenses. He has not argued that he did
not understand the proceedings below, and his background indicates that was capable
of understanding the consequences of his guilty plea. Therefore, this factor weighs
against withdrawal.

         6. Catchings’s prior experience with the criminal-justice system. Likewise, the
sixth factor weighs against Catchings because he has fairly extensive prior experience
with the criminal-justice system, as reflected in his criminal history category of III.



         5
            To the extent that Catchings argues that he would not have pleaded guilty had he known that
relevant conduct would have been included in the calculation of his Guidelines range, we are not persuaded
that this is true. There is ample evidence in the record that Catchings was well aware of the fact that
relevant conduct could be included in calculating his Guidelines range. E.g., R. 51 (Plea Agreement at 2)
(Page ID #64) (“All parties agree that the advisory Sentencing Guideline range and any restitution amount
will be computed based upon the relevant conduct findings by the Court at sentencing.”). In fact,
Catchings asked the district court about the effect the relevant conduct would have on his sentence prior
to pleading guilty. R. 114 (Change of Plea Hr’g at 10–13) (Page ID #881–84).
Nos. 11-6303/6305        United States v. Catchings                              Page 12


        7. Potential prejudice to the government if the motion to withdraw is granted.
Finally, we need not consider this factor because Catchings has not put forth a fair and
just reason for allowing withdrawal of his plea. United States v. Spencer, 836 F.2d 236,
240 (6th Cir. 1987) (“[T]he government is not required to establish prejudice that would
result from a plea withdrawal, unless and until the defendant advances and establishes
a fair and just reason for allowing the withdrawal . . . .”).

        In sum, our analysis of these factors indicates that Catchings’s motion to
withdraw his guilty plea was properly denied. Catchings’s argument that the district
court should have considered his allegation that defense counsel was ineffective before
denying Catchings’s motion to withdraw does not fit neatly into one of the seven factors
analyzed above, but it also fails. The record shows that Catchings’s last accusation that
his “elbow counsel” was not “competent” was on February 12, 2011. R. 72 (Mot. to
Dismiss Elbow Counsel) (Page ID #110–12). On March 23, 2011, Catchings made an
oral motion to reinstate his counsel to represent him fully. Therefore, the district court
had no reason to consider Catchings’s argument that his counsel was ineffective given
that Catchings reinstated his counsel after making that claim. R. 111 (3/11/2011
Sentencing Hr’g Tr. at 24, 27–28) (Page ID #673, 676–77). In considering the totality
of the circumstances, we hold that the district court did not abuse its discretion in
denying Catchings’s motion to withdraw his guilty plea.

                   IV. GUIDELINES RANGE CALCULATION

        Catchings argues that the district court improperly calculated his Guidelines
range by including non-criminal conduct as relevant conduct for the purpose of
determining the amount of loss under U.S.S.G. § 2B1.1(b)(1). Catchings advances two
arguments in support. First, Catchings asserts that “[t]he evidence presented at the
sentencing hearing was insufficient to establish that [he] committed any criminal conduct
relating to Mr. McCoy and U.S. Investments & Construction.” 11-6305 Appellant Br.
at 10. Second, he claims that the district court’s factual findings regarding the U.S.
Investments & Construction credit cards were clearly erroneous because they are
Nos. 11-6303/6305             United States v. Catchings                                             Page 13


unsupported by the evidence presented at sentencing. We agree with Catchings on both
points.

          We review the “district court’s findings of fact at sentencing for clear error and
its legal conclusions regarding the Sentencing Guidelines de novo.” United States v.
Maken, 510 F.3d 654, 656–57 (6th Cir. 2007). However, “[b]ecause the district court’s
determination that the activity in this case constitutes ‘relevant conduct’ under the
Sentencing Guidelines involves the application of law to fact, we review the district
court’s determination de novo.” United States v. Shafer, 199 F.3d 826, 830 (6th Cir.
1999). “Where the district court materially erred by failing to calculate the appropriate
guideline range, we are required to remand for re-sentencing.” United States v. Damra,
621 F.3d 474, 508 (6th Cir. 2010) (quotation marks and citation omitted).

          In calculating the Guidelines loss under U.S.S.G. § 2B1.1(b)(1), district courts
include losses sustained from relevant conduct under U.S.S.G. § 1B1.3. Although
“relevant conduct is not limited to conduct for which the defendant has been convicted,”
the conduct must “amount[] to an offense for which a criminal defendant could
potentially be incarcerated.” Maken, 510 F.3d at 658–59; Shafer, 199 F.3d at 831. In
short, relevant conduct under § 1B1.3 must be criminal conduct. See United States v.
Schaefer, 291 F.3d 932, 940 (7th Cir. 2002) (noting that its holding “that relevant
conduct under § 1B1.3 of the Guidelines is limited to criminal conduct” is “amply
supported” by case law in the Third, Fifth, and Eighth Circuits).

          Catchings argues that the district court erred by including his conduct related to
the U.S. Investments & Construction credit cards in its calculation of the Guidelines loss
amount because there was insufficient evidence to establish that said conduct was
criminal.6 In essence, Catchings points to evidence that showed that, unlike the other
victims who had their personal information stolen and their signatures forged on credit-



          6
          If the district court did not include the U.S. Investment & Construction credit cards, the total loss
would have been greater than $30,000 but less than $70,000, resulting in a lower total offense level of
eighteen and a lower Guidelines range of thirty-three to forty-one months. 11-6305 Appellant Br. at 14;
see U.S.S.G. § 2B1.1(b)(1); see also U.S.S.G. Sentencing Table.
Nos. 11-6303/6305            United States v. Catchings                                           Page 14


card applications, McCoy authorized Catchings to use his information to obtain credit
cards for their business, U.S. Investments & Construction.

         The government contends that Catchings’s conduct relating to the U.S.
Investments & Construction cards “closely mirrors” his conduct in obtaining the other
credit cards because:

         It involved the same pattern of fraud or modus operandi. The defendant
         used victims’ information, much of which was obtained during his prior
         business relationships with the victims, to establish or obtain
         unauthorized access to credit accounts in their names. The conduct was
         done for the same purpose. In each case, the defendant would steal
         money, goods and services from banks and merchants by using these
         credit[] accounts for his own benefit—all at the expense of the
         unknowing account holders.

11-6305 Appellee Br. at 22. The government acknowledges, however, that McCoy may
have been aware of the existence of the cards. Id. at 24. Nonetheless, the government
concludes that Catchings’s conduct related to the U.S. Investments & Construction cards
was criminal by citing numerous criminal statutes without explaining how the statutes
apply to the contested conduct.7 Id. at 25. This lack of analysis highlights the district
court’s error.

         Contrary to the government’s assertion that Catchings’s conduct related to the
U.S. Investments & Construction cards “involved the same pattern of fraud or modus
operandi,” we believe that this conduct is distinguishable from his use of other cards.
Catchings did not fraudulently obtain the company credit cards, as he did with the other
cards; instead, McCoy testified that they obtained credit cards for their business:

         Q: Were there any credit cards that were obtained for the purposes of
            furthering the business?
         A: Yes.



         7
          The government points to the district court’s use of “illegal conduct” as being indicative of a
recognition that Catchings’s conduct violated criminal law. 11-6305 Appellee Br. at 25–26. Illegal
conduct is not necessarily the type “that could lead to a criminal conviction resulting in prison time,” and
we decline to equate “illegal conduct” with “criminal conduct” in this case. Shafer, 199 F.3d at 830–31.
Nos. 11-6303/6305            United States v. Catchings                                          Page 15


R. 112 (9/29/2011 Sentencing Hr’g Tr. at 89–90) (Page ID #772–73). Although there
was evidence that McCoy did not authorize Catchings to use the credit cards, the
government has not proved—and the district court failed to explain—how Catchings’s
use of the cards constituted criminal conduct.8 The evidence showed that Catchings was
U.S. Investments & Construction’s president, McCoy relied on Catchings to “take care
of everything,” and Catchings was authorized to sign on behalf of the business. R. 112
(9/29/2011 Sentencing Hr’g Tr. at 97, 100–01) (Page ID #780, 783–84). It is unclear
how Catchings, the person who was responsible for running the company and who could
sign on behalf of the company, violated criminal statutes by using the company’s credit
cards (even without authorization from McCoy).9 There was insufficient evidence to
support the conclusion that Catchings engaged in criminal conduct in obtaining or using
the U.S. Investments & Construction cards. Therefore, the district court erred in
including those cards as relevant conduct in calculating the amount of loss.

         Catchings also argues that the district court’s finding that the cards were
“personal” is clearly erroneous. Catchings observes that the cards were not in McCoy’s
name, unlike the other cards included as relevant conduct that were in individuals’
names. 11-6305 Appellant Br. at 12–13. At the sentencing hearing, McCoy testified
that credit cards were obtained for the purpose of furthering their business, U.S.
Investments & Construction, and that the cards “had the business name on them.” R.
112 (9/29/2011 Sentencing Hr’g Tr. at 89–90) (Page ID #772–73). Catchings argues that
in addition to the fact that the cards were in the business’s name, there was no evidence
presented at sentencing that the cards were used for personal purchases. We agree with
Catchings. The evidence was ambiguous as to the nature of the charges and, as a result,


         8
           The district court did not state what criminal statute Catchings violated with regard to his use
of the U.S. Investments & Construction cards. We find this omission problematic in this case for two
reasons. First, Catchings contested whether his conduct related to these cards was criminal. Therefore,
the district court was aware of the need to make an explicit finding of criminality with regard to that
conduct. Second, although relevant conduct can include uncharged conduct, the fact that the U.S.
Investments & Construction cards were not listed in any charge against Catchings makes the need for an
express statement of what statute this conduct violated even greater. In comparison, the other cards that
were included in the relevant-conduct section of the PSR were listed in the indictments.
         9
          This is not to say that Catchings’s conduct could not have been criminal. Rather, we make this
observation in the context of the evidence presented at his sentencing hearing.
Nos. 11-6303/6305       United States v. Catchings                               Page 16


is not a basis for concluding that the U.S. Investments & Construction credit cards were
for “personal use.” Therefore, the district court did make a clearly erroneous finding of
fact that Catchings obtained the cards for personal use.

       Although we certainly agree with the district court that Catchings took advantage
of an overly trusting friend, we cannot say, based on the evidence presented at
sentencing, that Catchings’s conduct with respect to the U.S. Investments &
Construction credit cards was criminal. The evidence showed that McCoy authorized
Catchings to open the accounts and that the cards were in the name of their business,
U.S. Investments & Construction. The evidence was insufficient to establish that
Catchings’s conduct was criminal, and the district court erred by including these cards
in its loss calculation under U.S.S.G. § 1B1.3. Therefore, we vacate Catchings’s
sentence and remand for resentencing.

                                 V. CONCLUSION

       As set forth in this opinion, we AFFIRM the judgment of conviction of the
district court and its denial of Catchings’s motion to withdraw his guilty plea; however,
we VACATE Catchings’s sentence and REMAND the case for resentencing.
