                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 10a0600n.06

                                        No. 08-6323

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                                   FILED
UNITED STATES OF AMERICA,                                                      Sep 09, 2010
                                                                          LEONARD GREEN, Clerk
          Plaintiff-Appellee,

                 v.                                            On Appeal from the United
                                                               States District Court for the
WILLIAM PEPPERS,                                               Western District of
                                                               Tennessee at Memphis
          Defendant-Appellant.


                                                         /

Before:          GUY, MOORE, and GRIFFIN, Circuit Judges.

          RALPH B. GUY, JR., Circuit Judge.        Defendant William Peppers appeals from

the denial of his motion to withdraw his guilty plea with respect to two counts of a four-count

indictment. Following an evidentiary hearing, the district court denied defendant’s motion

for the reasons set forth in its August 19, 2008 Order. After review of the record and

consideration of the arguments presented on appeal, we find no abuse of discretion and

affirm.

                                              I.

          The charges stemmed from defendant’s several-hour rampage following a domestic

dispute on September 13, 2006. Defendant’s conduct included using an AK-47 to shoot out

the tires of his wife’s car, shoot at a neighbor who came out to investigate, and commit two
No. 08-6323                                                                                           2

armed carjackings and an armed robbery of one carjacking victim. Specifically, after chasing

the neighbor, defendant came upon Kevin Phillips and Leslie Sanders, who were seated in

an El Camino. Defendant forced them out at gunpoint, demanded money from Phillips, and

fled with the car and $270 in cash. A short time later, defendant abandoned that car and

continued on foot until he saw Isaac Sawyer, whom he knew, driving an Impala. Defendant

demanded, again at gunpoint, that Sawyer drive him to another location, where the defendant

got out. When apprehended nearby, defendant still had the keys to the El Camino.

        The indictment, filed February 27, 2007, charged defendant with two counts of

carjacking in violation of 18 U.S.C. § 2119 (counts 1 and 3), and two counts of using or

carrying a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (counts

2 and 4). After several adjournments, trial was scheduled for the first week of the criminal

trial rotation beginning on Monday, January 7, 2008. The prosecutor was notified on January

4 that defendant would plead guilty.

        On January 7, 2008, defendant signed the plea agreement and entered guilty pleas to

counts 1 and 4. These two counts, which were read to the defendant during the plea hearing,

charged defendant with the second carjacking (count 1) and the firearm offense related to the

first carjacking (count 4). During the colloquy with defendant, the district court inquired into

the voluntariness of the plea, apprised defendant of the rights he would be waiving, and

determined that there was a factual basis for his guilty plea.1 Defendant’s plea was accepted,

the matter was referred for a presentence report (PSR), and sentencing was set for April 7,

        1
          Although the plea agreement contained a waiver of appeal rights, the government makes no claim
that the issues raised in this appeal are covered by that waiver.
No. 08-6323                                                                                 3

2008. Objections were filed, sentencing was adjourned, and substituted counsel took over

defendant’s representation on April 15, 2008. Sentencing was adjourned several more times

at the request of counsel.

       On June 18, 2008, defendant informed the court that he might seek to withdraw his

plea and additional time was allowed for him to confer with counsel. Defendant’s motion

to withdraw the guilty plea, filed on July 24, 2008, was based on defendant’s assertion that

he was confused, that he pleaded guilty on the advice of counsel, and that he thought he was

pleading guilty to offenses relating to only one of the carjackings. After an evidentiary

hearing, the district court denied the motion for the reasons set forth in the Order filed on

August 19, 2008. Defendant was sentenced on October 22, 2008, to a below-guideline

sentence of 120 months for the carjacking, to be followed by a consecutive mandatory term

of 84 months for the § 924(c) conviction. This appeal followed.

                                             II.

       To withdraw a guilty plea before sentencing, the defendant bears the burden to

demonstrate “a fair and just reason for requesting the withdrawal.” F ED. R. C RIM. P.

11(d)(2)(B). The purpose of this provision is to allow a “‘hastily entered plea made with

unsure heart and confused mind to be undone, not to allow a 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. Dixon, 479 F.3d 431, 436 (6th

Cir. 2007) (citation omitted).
No. 08-6323                                                                                   4

       This court has developed a multi-factor balancing test to guide the decision on such

a motion. United States v. Haygood, 549 F.3d 1049, 1052 (6th Cir. 2008). The factors we

have identified are as follows:

       (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.

Id. (citation omitted). This list of factors is not exclusive, no one factor is dispositive, and

the relevance of each factor will vary according to the circumstances. Id.; see also United

States v. Ellis, 470 F.3d 275, 281 (6th Cir. 2006) (noting that government need not establish

prejudice unless the defendant has shown a fair and just reason for withdrawal).

       The district court’s denial of a motion to withdraw a guilty plea is reviewed for abuse

of discretion. Haygood, 549 F.3d at 1052. A district court abuses its discretion when “‘it

relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an

erroneous legal standard.’” Id. (citation omitted). The district court, having taken the plea

and heard defendant’s testimony in support of his motion to withdraw the plea, carefully

considered the seven factors identified by this court and determined that the defendant had

not met his burden to establish a fair and just reason for withdrawal.

       The district court found that factors one and two—concerning the amount of time that

had passed and the reasons offered for such delay—did not lend support either to granting

or denying the motion. Both the defendant and the government take issue with the neutral
No. 08-6323                                                                                              5

treatment of these factors. The delay of eight months between the guilty plea on January 7

and the motion to withdraw the plea on July 24 was lengthy. This court has said that “‘a

defendant’s reasons for filing such a motion will be more closely scrutinized when he has

delayed his motion for a substantial length of time.’” United States v. Baez, 87 F.3d 805, 808

(6th Cir. 1996) (citation omitted).

        The district court accepted defense counsel’s statement that a substantial portion of

the delay was due to the substitution of counsel prior to sentencing, and acknowledged that

the defendant indicated that he might seek to withdraw his plea more than a month before the

motion was actually filed. Neither fact, however, addressed the three months that passed

between the plea and the substitution of counsel. While such a delay has been found to

weigh against withdrawal in other cases, it certainly was not an abuse of discretion for the

district court to find that these factors did not weigh in favor of withdrawal in this case. See

Haygood, 549 F.3d at 1053 (citing United States v. Cinnamon, 112 F. App’x 415, 418-19

(6th Cir. 2004) (declining to allow withdrawal where motion was filed at least 90 days after

the guilty plea); Baez, 87 F.3d at 808 (67 days); United States v. Goldberg, 862 F.2d 101, 104

(6th Cir. 1988) (55 days); but see United States v. McCoy, 155 F. App’x 199, 203 (6th Cir.

2005) (remanding where district court relied solely on 133-day delay and there was no

express waiver of constitutional rights).2



        2
          The dissent acknowledges that the record does not reflect whether delay between the plea in
January and the substitution of counsel in April may be attributed to a lack of communication with counsel.
During that period, defendant was interviewed by probation and objections were filed to the PSR on his
behalf without mention of a desire to withdraw his plea. As the government emphasizes, defendant became
dissatisfied only after discovering that the PSR recommended a higher sentence than he had anticipated.
No. 08-6323                                                                                  6

       Factors three and four—whether defendant asserted or maintained his innocence and

the circumstances surrounding the plea—were found by the district court to be dispositive.

In seeking to withdraw his plea, defendant testified that although he had discussions with his

attorney about a plea offer, he thought he was coming to court on January 7 for trial on all

four counts and did not intend to plead guilty. However, the January 7th transcript does not

reflect any uncertainty about it being a plea-change hearing as opposed to a trial. Although

defendant asserted his innocence of all the charges at the conclusion of the hearing on the

motion for withdrawal, defendant’s claim was then and continues to be that he pleaded guilty

to the wrong counts. On appeal, defendant emphasizes his testimony at sentencing denying

that he used the AK-47 in taking the El Camino from Phillips. That denial, which was

contradicted by statements from several witnesses, was not a claim of innocence.

       Defendant testified at the hearing on the motion that he had wanted to fire his attorney

when he came to court on January 7, although he did not say so once he was there. In fact,

when asked, defendant expressed satisfaction with his attorney, said he had discussed the

plea agreement with counsel, and had his questions answered by counsel.               Despite

defendant’s later claim that he had been confused about which charges he was pleading

guilty to, the terms of the plea agreement were reviewed and counts 1 and 4 were read to the

defendant at the outset of the change of plea hearing. Also, in establishing the factual basis

for the plea, the government outlined the proof as it related to both carjackings. Although

defense counsel noted defendant’s disagreement with some of the facts—unspecified things

about the sequence of events—defendant nonetheless admitted that the government would
No. 08-6323                                                                                                   7

likely have been able to establish the essential elements of count 1 and count 4. The district

court asked defendant whether he needed to talk privately with his attorney before entering

the plea, but defendant answered “no” and pleaded guilty to count 1 and to count 4.

        Defendant testified in seeking to withdraw his plea that he was “really disappointed”

with the sentence recommendation in the PSR for a carjacking and a firearm that he now

claimed not to have possessed.             Confronted by the district court with his post-arrest

admission to having used the AK-47 in stealing the cars, defendant claimed that he had been

threatened and “somewhat” coerced by the police into confessing that he had the AK-47. He

then also said he had been coerced by his attorney into pleading guilty, contradicting his prior

testimony that he entered the plea agreement of his own free will.3

        The district court found that the defendant’s prior experience with the criminal justice

system—the sixth factor—undermined defendant’s claim that he had been confused about

the pleas he entered in this case. Defendant acknowledged that he had as many as 18 prior

guilty pleas, although he argued that they were mostly state convictions for driving-related

offenses. Without disputing that this factor was relevant, defendant argues that his history

and characteristics—the fifth factor—supported his claim of a fair and just reason for

withdrawing his guilty plea.


        3
         Although the dissent concludes that the district court “apparently agree[d]” that counsel may have
pressured the defendant into pleading guilty, that was neither a factual finding nor is it a fair reading of the
colloquy with counsel. Rather, the district court’s response to counsel’s expressed discomfort with the
suggestion that prior counsel had coerced the plea was that counsel knew defendant’s claim was that he had
been misled. The record also reflects that the government was unwilling to agree to a plea that did not
account for both victims; that, absent a plea, defendant faced a minimum consecutive 25-year term on the
second firearm offense; and that the witness statements admitted into evidence at sentencing justified the
defense’s concession that the government would likely be able to prove both firearm offenses.
No. 08-6323                                                                                8

       Defendant was 42 years of age and had a tenth-grade education. At the hearing on the

motion to withdraw, defendant testified that he was a “slow learner,” attended a special

education class, and could hardly read, but could “read some.” In connection with the PSR,

defendant indicated an intention to complete his GED. Defendant argues on appeal that his

educational level and the effects of his cocaine addiction may have caused him to have

trouble understanding what he was doing. The district judge, who observed defendant testify

at both hearings, found that defendant’s plea was voluntary and knowing. The question for

this court is not whether we would believe defendant’s claim of confusion, but, rather,

whether it was an abuse of discretion for the district court not to believe him.

       On this record, we cannot conclude that the district court abused its discretion in

finding, after balancing the relevant factors, that the defendant had not demonstrated a fair

and just reason to withdraw his guilty plea to counts 1 and 4.

       AFFIRMED.
No. 08-6323                                                                                   9

       KAREN NELSON MOORE, Circuit Judge, dissenting. Federal Rule of Criminal

Procedure 11 permits a defendant to withdraw a guilty plea prior to sentencing provided that

the defendant has presented a “fair and just reason” for doing so. Because I believe that

William Peppers has established such a reason, and that the district court abused its discretion

in concluding otherwise, I must dissent.

       This court reviews a district court’s denial of a motion to withdraw a guilty plea for

an abuse of discretion. United States v. Dixon, 479 F.3d 431, 436 (6th Cir. 2007). We have

held that a district court abuses its discretion in denying a defendant the right to withdraw a

guilty plea “when the district court relies on clearly erroneous findings of fact, improperly

applies the law or uses an erroneous legal standard.” United States v. Ellis, 470 F.3d 275,

280 (6th Cir. 2006). “This Court may also find an abuse of discretion if the district court

‘committed a clear error of judgment in the conclusion it reached upon a weighing of the

relevant factors.’” Id. (quoting United States v. Schreane, 331 F.3d 548, 564 (6th Cir.

2003)). In determining whether a fair and just reason exists to permit a defendant to

withdraw a plea, and whether the district court abused its discretion, we review a number of

nonexclusive factors, the Bashara factors, which include:

       “(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.”
No. 08-6323                                                                                10

United States v. Ward, 356 F. App’x 806, 808–09 (6th Cir. 2009) (quoting United States v.

Bashara, 27 F.3d 1174, 1181 (6th Cir. 1994), abrogated on other grounds by statute as

recognized in United States v. Caseslorente, 220 F.3d 727, 734 (6th Cir. 2000)); see also

United States v. Hunt, 205 F.3d 931, 937 (6th Cir. 2000). “Each factor’s relevance ‘varies

according to the circumstances surrounding the original entrance of the plea as well as the

motion to withdraw.’” Ward, 356 F. App’x at 809 (quoting United States v. Haygood, 549

F.3d 1049, 1052 (6th Cir. 2008)) (alteration omitted).

       Peppers pleaded guilty in a written plea agreement to one count of carjacking a

Chevrolet Impala from Issac Sawyer (Count 1) and one count of using and carrying a firearm

during and in relation to a carjacking of a Chevrolet El Camino from Kevin Phillips (Count

4). Subsequently, Peppers filed a motion to withdraw the plea asserting that he failed to

understand the terms of the written agreement—namely, he did not comprehend at the time

of his plea that it encompassed acts from both carjackings as opposed to the entirety of the

conduct associated with the carjacking of the Impala. As a result, Peppers claimed that he

had erroneously pleaded guilty to conduct in Count 4 that he did not commit. Because I

believe that the district court relied on a clearly erroneous factual conclusion regarding

Peppers’s assertion of innocence when refusing to allow Peppers to withdraw his guilty plea

as well as committed a clear error of judgment in weighing the totality of the factors that it

properly considered, I would REVERSE the judgment of the district court and REMAND

for further proceedings.
No. 08-6323                                                                                          11

       The first factor that this court generally considers in determining whether the district

court abused its discretion in denying a defendant’s motion to withdraw a guilty plea is the

delay between the entrance of the guilty plea and the motion to withdraw and, if there is a

delay, whether the defendant has asserted a valid reason. Here, as the majority notes, the

delay was lengthier than many delays that we have determined weighed against the

defendant. Unlike the majority, however, I believe that Peppers has articulated a valid reason

for the delay. Following Peppers’s guilty plea in January 2008, his attorney, Mr. Brown, left

the federal-public-defenders office and was removed from Peppers’s case.1 Peppers was not

appointed substitute counsel, Ms. Jermann-Robinson, until mid-April 2008, and apparently

because of the demands of her caseload at the time, Jermann-Robinson had difficulties both

meeting with her new client and becoming familiar with his case. In fact, following her

appointment, Jermann-Robinson requested three continuances of Peppers’s sentencing

hearing, and at least one was premised on the fact that Jermann-Robinson had yet to meet

with the incarcerated Peppers. It is unclear from the record when Jermann-Robinson finally

met with Peppers, but on June 18, 2008, Jermann-Robinson requested “additional time to

confer” with Peppers because Peppers had given indications that he wanted to withdraw his

guilty plea. Jermann-Robinson ultimately filed Peppers’s official motion to withdraw

approximately one month later on July 24, 2008, stating before the district court that “any




       1
         The record does not indicate precisely when Brown left and whether Brown was properly
communicating with Peppers up until his departure. Brown apparently did file a position paper
relating to the PSR on Peppers’s behalf on April 3, 2008, but Peppers asserts in his pro se filings that
following the negotiation of the plea agreement he had been abandoned by Brown.
No. 08-6323                                                                                  12

delay or at least a delay since April the 15th has been on me and not on Mr. Peppers.” Dist.

Ct. Dkt. Doc. (“Doc.”) 59 (Hr’g Mot. to Withdraw at 29).

       Given both Brown’s departure and Jermann-Robinson’s inability to meet with Peppers

and prepare for his case, I believe that Peppers has presented a valid excuse for not moving

to withdraw his guilty plea earlier and has explained sufficiently the delay. The record

plainly indicates that, through no fault of Peppers, there was a lack of communication and

contact between Peppers and his shifting counsel, and the delay in filing the motion was

directly attributable to the departure of one counsel and the substitution of another. See

United States v. McCoy, 155 F. App’x 199, 203 (6th Cir. 2005) (unpublished opinion)

(indicating a delay was justifiable when the defendant had expressed to his old counsel a

desire to withdraw his guilty plea and “new counsel,” with whom the defendant presumably

had time to consult, “filed the motion to withdraw the plea within approximately 45 days of

being appointed”); cf. United States v. McIntyre, No. 09-3347, 2010 WL 2545483, at *4 (6th

Cir. June 11, 2010) (unpublished) (finding no excusable delay when the defendant failed to

offer any evidence to support his conclusion that “he brought the motion to withdraw his plea

to counsel at his first opportunity” because his “motion . . . simply state[d] that ‘counsel did

not have contact with [him] for several weeks” and “did not claim that [he] was prevented

from contacting his attorney.”); United States v. Bustos, 186 F. App’x 551, 554–55 (6th Cir.

2006) (unpublished opinion) (“[E]ven considering the substitution in appointed counsel, 54

days passed between substituted counsel’s appointment to the case and the filing of the

motion of withdrawal,” and the defendant “fails to provide any explanation at all for this
No. 08-6323                                                                                       13

54-day delay.” (internal quotation marks omitted)). As a result, this factor weighed in favor

of granting Peppers’s motion to withdraw.

       Two of the next factors that we consider in determining whether a district court has

abused its discretion are the circumstances underlying the entry of the plea agreement and

the nature and background of the defendant. To be sure, as the majority notes, there are some

facts surrounding Peppers’s plea that tend to weigh in favor of the Government. For

example, Peppers never objected to the factual basis for the plea as it was presented in the

indictment and in open court, and he answered in the negative when the district court asked

whether Peppers had any questions concerning the plea agreement. Despite these facts,

however, in its analysis, the district court ignored a wealth of evidence that Peppers simply

did not understand that he was pleading guilty to charges stemming from the two separate

carjackings and that he did not intend to do so.

       First, there is evidence that Peppers may have been pressured by Brown into pleading

guilty in light of Brown’s scheduled departure from the federal-public-defenders’ office.

From the initial indictment onward, Peppers had maintained continually his desire to go to

trial, and he apparently agreed to plead guilty only a few days before the trial was set to

commence.2      The Government even acknowledged that it had engaged in “lengthy


       2
        In fact, there is record evidence indicating that Peppers was unaware of the purpose of the
change of plea hearing prior to its commencement and that he believed when he arrived at the
courthouse that he was there for trial. The district court never made a finding as to whether Peppers
agreed to plead guilty before arriving in court, however, because Peppers conceded that at some
point during the proceeding he became aware that it was a plea hearing. When the district court
asked Peppers why he continued to plead guilty if he had intended to go to trial, Peppers responded:
       I [thought that] I was going to court, but also I wanted to fire Pat Brown, too. And
       as I stepped in this courtroom, and I seen you, it looked like to me you was like
No. 08-6323                                                                                       14

negotiation” with Brown on Peppers’s behalf and further conceded that it knew that it was

“Mr. Peppers’[s] position that he wanted to plead just to one event, not two.” Doc. 59 (Mot.

Withdraw Hr’g at 32–33). Peppers testified that prior to the hearing Brown had told him that

it was in Peppers’s “best interest to say yes, yes, yes to everything that [the district court]

asked,” id. at 10–11, and that he felt rushed by Brown to resolve the case and believed that

Brown “did all that he could do to get [him] to sign [a] plea so that [Brown could] go ahead

and move on out of town” without having to deal with Peppers further, id. at 22.

       Given the facts in the instant case, it is both curious and concerning that after

expressing a very clear desire to plead to solely one criminal episode throughout protracted

negotiations with the Government, Peppers would have decided suddenly, on the eve of trial,

to plead guilty to the two unrelated counts. And despite denying the motion to withdraw, the

district court apparently agreed that Brown may have pressured Peppers into pleading guilty.

Following testimony concerning Brown’s allegedly coercive behavior, Jermann-Robinson

stated to the district court that she was “uncomfortable” with the tone that the hearing was

taking with regard to Brown’s representation. Id. at 25. The district court responded without

sympathy, noting that Jermann-Robinson “knew coming in [to court] that [Peppers’s]

attorney misled him.” Id. at 26.

       Second, in addition to evidence that Peppers fought the prospect of pleading guilty to

two unrelated counts and may have pleaded only upon pressure from Brown, the



       sitting up there like a god and angel . . . my mouth would not open at all, it would not
       come out of my mouth to say I wanted to fire Pat Brown.
Doc. 59 (Mot. Withdraw Hr’g at 17–18).
No. 08-6323                                                                                 15

circumstances under which Peppers pleaded guilty cannot be divorced from Peppers’s nature

and background. According to Peppers’s testimony, he is “a slower learner” and “attended

a special education class.” Id. at 20. Moreover, Peppers testified that he “never read the

piece of paper” (i.e., the plea agreement) that Brown gave him to sign, id. at 11, because he

“can’t hardly read,” id. at 20, and that despite asking Brown to read the document to him,

Brown “never . . . read [him] anything,” id. I am extremely troubled by the fact that neither

counsel nor the district court thought to inquire as to whether Peppers’s alleged disability or

reading difficulties may have influenced his understanding of the plea hearing, particularly

in light of Peppers clear assertion it was “not that [he] didn’t pay attention” at the plea

hearing; instead, he just “didn’t understand what was going on.” Id.

       Thus, notwithstanding my agreement with the majority that the district court’s and

Government’s statements at the plea hearing contained facts sufficient to put Peppers on

notice that he was pleading guilty to two unrelated counts, if Peppers’s assertions regarding

his limited comprehension skills are true—and there is no finding otherwise—then it is likely

that he simply did not understand that his preference to plead to a singular episode had not

prevailed during the plea negotiations, and, even assuming that he did understand what was

happening given his lack of education, Peppers could have been intimidated by the formal

setting such that he would not have objected. Lamentably, the district court never discussed

the role that Peppers’s “nature and background” played it its analysis of the Bashara factors
No. 08-6323                                                                                       16

and its decision to deny his motion,3 and given this particular factor’s clear relevance as to

the question of whether Peppers understood the plea, I believe that the district court abused

its discretion in failing to inquire further and in ultimately deciding that the circumstances

surrounding the entry of the plea warranted the refusal of Peppers’s request to withdraw. In

sum, when the facts surrounding the plea agreement that favor the Government are viewed

in light of Peppers’s background, I believe that these factors ultimately tip in Peppers’s favor

on the instant record. At the very least, given the district court’s failure to address this factor,

a remand for further factual findings as to Peppers’s literacy and learning disability is

warranted.

       An additional factor that we consider in our analysis is whether the defendant has

asserted or maintained his or her innocence of the charges to which he or she pleaded guilty.

In the instant case, the district court concluded that Peppers first asserted his innocence at the

end of the hearing on his motion to withdraw and that such an assertion was inconsistent with

Peppers’s previous statement that he was willing to plead guilty to the entirety of the criminal

episode involving the Impala. The district court’s conclusion, however, is clearly erroneous.

Apart from failing to object to the description of the charges, the record indicates that

Peppers did, in fact, maintain from the inception of the criminal proceedings that he was




       3
        To the extent that Peppers’s background can be grouped with the factor focusing on his
experience in the criminal-justice system, the district court did determine that Peppers’s experience
undermined his claim that he was confused at the hearing. Certainly, Peppers does have a lengthy
criminal history, and he has pleaded guilty on previous occasions. But as Peppers notes in his brief,
many of the crimes to which he pleaded guilty were fairly simple criminal charges—the majority of
which related in some manner to driving infractions.
No. 08-6323                                                                               17

innocent of the conduct contained in Count 4, which was the impetus behind his desire to

withdraw his guilty plea.

       In concluding that Peppers was inconsistent with regard to his innocence, the district

court relied on the following exchange at the hearing to withdraw his plea:

       [The court:] Is it your statement to the court that you are not guilty of the
       matters contained in the indictment which charges you with two carjackings
       and two 924(c) use of a firearm in connection with a crime of violence . . .?

       [Peppers:] Yes, ma’am.

Id. at 27 (emphasis added). A plain reading of the district court’s question and Peppers’s

answer, however, does not indicate that Peppers’s response was in any way incompatible

with his assertion that he engaged in the conduct alleged in Counts 1 and 2 (and was willing

to plead guilty to those), but was not guilty of Count 4. Peppers agreed that he was “not

guilty of . . . two carjackings and two 924(c),” but that does not mean that Peppers was

asserting that he did not engage in any of the conduct and would refuse to admit that he was

guilty of one car jacking and one gun charge, as he had maintained during both pre-trial

negotiations and at the hearing on the motion to withdraw his guilty plea.

       Furthermore, although the Government relies on Peppers’s interview with the U.S.

Probation office, as relayed in the Presentence Investigation Report (“PSR”), to support its

claim that Peppers has not maintained consistently his innocence as to Count 4, the

Government’s assertions are also overstated.        First, contrary to the Government’s

characterization of the PSR, the PSR does not convey that Peppers confessed to the probation

office that he threatened the driver of the El Camino with a gun, as charged in Count 4. The
No. 08-6323                                                                                18

PSR instead states that “Peppers stated that as he approached Kevin Phillips’ vehicle [the El

Camino], Phillips abandoned the vehicle, leaving the keys in it.” PSR ¶ 10. Peppers’s

admission to the probation office regarding the theft of the El Camino clearly did not mention

any weapon. Second, the Government highlights the fact that Peppers told the probation

office that “the victim was a good friend” and that Peppers was “deeply sorry” for what he

did, id. ¶ 14, and it argues that this statement requires the conclusion that Peppers was

admitting guilt as to all of the charges. But the PSR identifies the “victim in this case” as

“Issac Sawyer,” and Sawyer “was the owner and operator of the . . . Impala,” which Peppers

never denied stealing. Id. ¶ 12. The statement that Peppers was sorry for harming his friend

in the Impala does not therefore undermine Peppers’s assertion that he was not guilty of the

conduct in Count 4, involving the El Camino. Looking at the totality of the evidence in the

record, I believe that Peppers has maintained his innocence as to Count 4, and it is because

Peppers claims that he is not guilty of this count that he desires to withdraw his plea. The

district court’s conclusion that Peppers advanced inconsistent positions at the plea hearing

is therefore clearly erroneous, and this factor weighs in favoring allowing Peppers to

withdraw his plea.

       In short, there are two bases for vacating the judgment of the district court. First,

Peppers had maintained consistently his innocence as to Count 4, and the district court’s

conclusion otherwise is not supported by the record. Because we have held that a district

court abuses its discretion in denying a motion to withdraw based on a “clearly erroneous

finding[] of fact,” Ellis, 470 F.3d at 280, I would remand to the district court for further
No. 08-6323                                                                                   19

proceedings on this ground. Second, in addition to relying on a clearly erroneous fact, I

believe that the district court “committed a clear error of judgment in the conclusion it

reached upon a weighing of the relevant factors.” Id. (internal quotation marks omitted). As

outlined above, any delay in moving for withdrawal was attributable to counsels’ conduct.

To be sure, there were some facts surrounding the entry of the plea that weighed in favor of

the Government, but those facts were counterbalanced by troubling evidence regarding

potential pressure from Brown for Peppers to plead guilty as well as Peppers’s inability to

understand what was occurring because of a disability and an inability to read. The district

court abused its discretion by failing even to acknowledge, let alone discuss, the several

troublesome facts related to Peppers’s background and nature that clearly raised red flags,

and, as a result, committed a clear error in weighing the factors that it did consider. For all

of the reasons outlined above, I believe that Peppers has met his burden to put forth a fair and

just reason for allowing him to withdraw his guilty plea, and the district court abused its

discretion in concluding otherwise.

       Because I would hold that Peppers has established a fair and just reason to withdraw

his guilty plea in light of the Bashara factors, the final matter that I must consider is whether

the Government would be prejudiced by allowing Peppers to withdraw his guilty plea. See

Ellis, 470 F.3d at 285–86 (indicating that the Government is not required to establish

prejudice “unless and until the defendant advances and establishes a fair and just reason” for

withdrawal (internal quotation marks omitted)); United States v. Alexander, 948 F.2d 1002,

1004 (6th Cir. 1991) (“The prejudice to the government need not be established or considered
No. 08-6323                                                                                 20

unless and until the defendant has established a fair and just reason for vacating his plea.”).

Here, the Government argues that it would be prejudiced in two ways. First, it claims that

witnesses’ memories will have dimmed, thereby reducing the strength of its case against

Peppers, and second, it would be required to spend time and resources preparing for trial.

The Government’s assertions are without merit.

       “Generally, prejudice to the government has been found in cases where the entering

of a guilty plea and then a subsequent motion to withdraw has made the government’s case

more difficult than it would have been if the guilty plea had never been entered.” United

States v. Lineback, 330 F.3d 441, 445 (6th Cir. 2003) (Gilman, J., concurring). In the instant

case, the Government has not alleged that physical evidence has been discarded, id. (citing

United States v. Jerry, 487 F.2d 600 (3d Cir. 1973)), or that its witnesses have died, id.

(citing United States v. Vasquez-Velasco, 471 F.2d 294 (9th Cir. 1973)). Rather, the

Government has claimed simply that the witnesses’ memories will be less fresh and has

asserted without any supporting evidence that they will be unable to remember the important

events. It is certainly true that memories fade with time, but I do not believe that the delay

has been so long that the relevant witnesses would unable to remember the salient details of

these traumatic crimes such that their dimmed memories can be equated to the loss of

evidence. See, e.g., United States v. Valdez, 362 F.3d 903, 913 (6th Cir. 2004) (“There . . .

was no finding in the record that key witnesses were no longer available or that the few

months’ delay had hindered their ability to remember key events.”). As to the Government’s

second claim, as Peppers notes, he pleaded guilty on the eve of trial, which means that “[t]he
No. 08-6323                                                                                   21

government had already completed the discovery process, lined up witnesses[,] and was

presumably prepared to go to trial.” Appellant Br. at 21. The Government cannot make a

showing of prejudice by stating simply that going to trial will require a further expenditure

of time and resources. If that were sufficient to establish prejudice, then no defendant would

ever be able to overcome the prejudice hurdle.          See Valdez, 362 F.3d at 913 (“The

government always has to spend time and money trying a case, so this ‘prejudice’ is

irrelevant on these facts.”). Because I believe that allowing Peppers to withdraw his plea

would not cause prejudice to the Government, this factor does not overcome my belief that

Peppers put forth a fair and just reason to withdraw his guilty plea and that the district court

abused its discretion in denying Peppers’s motion.

       In conclusion, for the reasons outlined above, I believe that Peppers has set forth a fair

and just reason to withdraw his guilty plea and that the district court abused its discretion in

determining otherwise. I would REVERSE the judgment of the district court.
