                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0309n.06
                              Filed: May 3, 2006

                                             No. 05-1651

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,                          )
                                                    )    ON APPEAL FROM THE UNITED
v.                                                  )    STATES DISTRICT COURT FOR THE
                                                    )    WESTERN DISTRICT OF MICHIGAN
CHARLES MARCUS PICKETT,                             )
                                                    )    OPINION
       Defendant-Appellant.                         )
                                                    )



BEFORE:        GIBBONS and COOK, Circuit Judges, and SCHWARZER,* Senior District
               Judge

       WILLIAM W SCHWARZER, Senior District Judge. Defendant-Appellant Charles

Marcus Pickett, charged with being a felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1),

924(a)(2), appeals the district court’s denial of his motion to withdraw a guilty plea and his resulting

sentence. We affirm the district court’s ruling and sentence. Because the parties are familiar with

the facts, we need not recite them.

       We review for abuse of discretion a district court’s denial of a motion to withdraw a guilty

plea. United States v. Pluta, 144 F.3d 968, 973 (6th Cir. 1998). “[T]he defendant has the burden

of proving the existence of a fair and just reason supporting the withdrawal of his or her guilty plea.”



       *
         The Honorable William W Schwarzer, Senior United States District Judge for the Northern
District of California, sitting by designation.
No. 05-1651
United States of America v. Pickett

Id. (quotation marks and citation omitted). The district court did not abuse its discretion in holding,

under the Pluta factors, that Pickett lacked a sufficient reason for withdrawing his plea. First,

Pickett cites no case in which a court has granted a withdrawal motion filed fifty-four days or more

after the plea. Second, even assuming that Pickett’s prior lawyer frustrated his efforts to obtain new

counsel, Pickett provides an inadequate explanation as to why it took nearly a month to file the

withdrawal motion after securing new counsel. Third, Pickett’s withdrawal motion does not assert

or maintain his innocence. Fourth, on multiple occasions prior to entering his original plea, Pickett

affirmed that he understood his rights, was satisfied with his legal representation, and was entering

the plea voluntarily. Finally, the record supports the district court’s findings that Pickett is

“intelligent and articulate” and “not a stranger to the criminal process.”

       Pickett’s allegations of sentencing error also lack merit. The court did not err by engaging

in judicial factfinding to calculate Pickett’s Guidelines sentence range. “Booker did not eliminate

judicial fact-finding in sentencing in cases where a defendant plead [sic] guilty.” United States v.

Williams, 411 F.3d 675, 678 (6th Cir. 2005). The district court did not use judicially-found facts to

sentence Pickett beyond the statutorily authorized maximum term. United States v. Booker, 543

U.S. 220, 233-34 (2005).

       Finally, Pickett does not demonstrate error in the district court’s sentencing decision to

overcome the rebuttable presumption of reasonableness credited to sentences falling within the

Guidelines range. United States v. Richardson, 437 F.3d 550, 553 (6th Cir. 2006). “[W]e may

conclude that a sentence is unreasonable when the district judge fails to consider the applicable

Guidelines range or neglects to consider the other factors listed in 18 U.S.C. § 3553(a).” Id.

                                                 -2-
No. 05-1651
United States of America v. Pickett
(quotation marks and citation omitted). Contrary to Pickett’s allegations on appeal, the district court

considered his suggested mitigating factors but ultimately found them unpersuasive given the

specific circumstances of his criminal activity. The court sufficiently addressed Pickett’s § 3553(a)

issues and, therefore, the sentence it imposed was reasonable.

       For the foregoing reasons, we AFFIRM.




                                                 -3-
