                                     File Name: 05a0920n.06
                                    Filed: November 18, 2005

                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                           No. 04-4463

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                         ON APPEAL FROM THE
                                                           UNITED STATES DISTRICT
DONTA M. MCCOY,                                            COURT FOR THE SOUTHERN
                                                           DISTRICT OF OHIO
       Defendant-Appellant.



BEFORE:        DAUGHTREY and COLE, Circuit Judges; HEYBURN, Chief District
               Judge*

       PER CURIAM. Appellant Donta McCoy (“McCoy”) pleaded guilty to being a felon in

possession of ammunition. He appeals the district court’s denial of: 1) his motion to suppress

evidence on Fourth Amendment grounds; and 2) his motion to dismiss pursuant to the Speedy Trial

Act (18 U.S.C. § 3161 et seq.). McCoy also appeals the district court’s refusal to allow him to

withdraw his guilty plea and its finding that his plea was knowingly and voluntarily made. The

underlying circumstances presented several difficult issues for the district judge. For the following

reasons, we AFFIRM the district court’s denial of McCoy’s motion to suppress evidence and his

motion to dismiss the indictment, and REMAND this case for a new consideration of McCoy’s



       *
          The Honorable John G. Heyburn II, Chief United States District Judge for the Western
District of Kentucky, sitting by designation.
No. 04-4463
United States v. McCoy
Page 2

motion to withdraw his guilty plea consistent with this opinion.

                                                  I.

       On October 12, 2003, Officers Demeco Anderson and Darrell Beavers of the Cincinnati

Police Department were dispatched to the J&W Market at 3515 Burnet Avenue in Cincinnati, Ohio,

in response to a 911 call reporting that a black male in his thirties, wearing a camouflage jacket and

blue jean shorts, was carrying a gun and had threatened someone. The uniformed officers

approached the address slowly in their marked police cruiser, looking for someone matching that

description. While driving to the scene, they passed between fifty and sixty black men in a two-to-

three block area.

       Approximately three houses from the market, the officers spotted McCoy, a black male who

appeared to be in his thirties and was wearing blue jean shorts and a camouflage jacket. Officer

Beavers angled the cruiser towards McCoy and stopped. Officer Beavers exited with his gun drawn

and asked McCoy to come to a halt. McCoy immediately began to run. The officers gave chase on

foot. After detaining him, the officers searched McCoy and found a loaded handgun and twenty-two

rounds of ammunition. The officers placed McCoy under arrest.

       On January 7, 2004, a federal grand jury indicted McCoy on one count of being a felon in

possession of ammunition in violation of 18 U.S.C. § 922(g)(1). McCoy moved to suppress

evidence of the handgun and ammunition on the grounds that he was stopped and searched illegally.

The district court scheduled both the suppression hearing and the trial for March 23, 2004. On that

date the district court conducted a hearing and then denied the motion to suppress. McCoy then

orally moved to have his indictment dismissed pursuant to the Speedy Trial Act, 18 U.S.C. § 3161,
No. 04-4463
United States v. McCoy
Page 3

et seq. The district court denied that motion as well.

       Before proceeding to trial, McCoy’s counsel and the United States Attorney informed the

court that McCoy wished to plead guilty to the charge in the indictment. A change-of-plea colloquy

followed, during which McCoy’s counsel informed the court that McCoy requested appointment of

new counsel or a continuance to obtain new counsel. The court refused to grant the continuance or

to appoint him new counsel at that time. As the colloquy progressed, McCoy informed the court that

he was not satisfied with the advice he had received from his counsel. Nevertheless, McCoy pleaded

guilty to the charges.

       Thereafter, McCoy asked his attorney to withdraw the guilty plea. His attorney, however,

did not act on this request. On April 28, 2004, McCoy’s attorney did file a motion to withdraw as

counsel, stating that McCoy was no longer cooperating with him and he could no longer effectively

represent him. McCoy’s attorney notified the district court that McCoy wanted to withdraw his

guilty plea, but he filed no such motion. On May 3, the district court granted McCoy’s attorney’s

motion to withdraw and held “the facts of this case, combined with Defendant’s failure to cooperate

with Counsel and with the Probation Department, militate against the Court permitting Defendant

to withdraw his guilty plea.”

       On May 19, 2004, the district court appointed Clyde Bennett II, McCoy’s current counsel,

to represent him. On August 6, 2004, McCoy filed a motion to withdraw his guilty plea on the

ground, in part, that his plea was not entered into knowingly and voluntarily. The district court

denied the motion. This timely appeal followed.

                                                    II.
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Page 4

        We have jurisdiction pursuant to 28 U.S.C. § 1291. In reviewing a denial of a motion to

suppress evidence, we review the district court’s factual determinations under a clearly erroneous

standard, but we review that court’s legal conclusions de novo. United States v. Carpenter, 360 F.3d

591, 594 (6th Cir. 2004). We review the district court’s application of the Speedy Trial Act de novo.

United States v. Dunbar, 357 F.3d 582, 590 (6th Cir. 1994). Finally, we review the denial of a

motion to withdraw a guilty plea for abuse of discretion. United States v. Lineback, 330 F.3d 441,

443 (6th Cir. 2003) (citing United States v. Bazzi, 94 F.3d 1025, 1027 (6th Cir. 1996)). “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. (quoting United States v. Spikes, 158 F.3d

913, 927 (6th Cir. 1998)).

                                                      III.

        McCoy challenges the propriety of the officers’ stop and search under Terry v. Ohio, 392

U.S. 1 (1968). Under Terry, an officer must justify the stop and subsequent search with “articulable

facts which, taken together with rational inferences from those facts, reasonably warrant” the stop.

Id. at 21.

        In this case, the 911 caller provided the officers with specific identification of the race,

approximate age, and attire of a suspect. The caller also alerted the officers that the suspect

possessed a gun and had threatened someone. On their way to the J&W Market, the officers spotted

McCoy, who, as the district court concluded, matched that description “perfectly.” McCoy argues

that the description was not detailed enough to warrant the officers stopping him. However, the

officers passed fifty to sixty males of the same race and stopped McCoy only a few houses from the
No. 04-4463
United States v. McCoy
Page 5

market and no one else, because only McCoy fit the caller’s description. The district court was

correct, therefore, to conclude that the officers had an articulable basis for the stop.

       McCoy’s decision to flee further supported the stop. “Headlong flight – wherever it occurs

– is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainty

suggestive of such.” Illinois v. Wardlaw, 528 U.S. 119, 124 (2000). “Allowing officers confronted

with such flight to stop the fugitive and investigate further is quite consistent with the individual’s

right to go about his business or to stay put and remain silent in the face of police questioning.” Id.

at 125. The description and the flight created probable cause to support the arrest. See Weaver v.

Shadoan, 340 F.3d 398, 409 (6th Cir. 2003); United States v. Doston, 49 F.3d 227, 231 (6th Cir.

1995). It follows that the search of McCoy’s person incident to his lawful arrest was permissible.

United States v. Montgomery, 377 F.3d 582, 586 (6th Cir. 2004) (citing United States v. Robinson,

414 U.S. 218, 234-35 (1973)). See also, Montgomery, 377 F.3d at 586 (citing Rawlings v. Kentucky,

448 U.S. 98, 110-11 (1980)).

       We therefore AFFIRM the district court’s denial of McCoy’s motion to suppress evidence

of the handgun and ammunition.

                                                     IV.

       McCoy argues that the district court was required to dismiss the indictment under the Speedy

Trial Act, because his suppression motion did not actually delay the trial. The Speedy Trial Act

requires that a defendant be tried within seventy days of the filing of the indictment or his first

appearance before a judicial officer, whichever date is later. 18 U.S.C. § 3161(c)(1). When

calculating the seventy days, however, the time between when a defendant files a motion that
No. 04-4463
United States v. McCoy
Page 6

requires a hearing and when the hearing is held is “excluded.” 18 U.S.C. § 3161(h)(1)(F).1

       McCoy argues that, under a plain language reading of the Speedy Trial Act, only motions

that actually “delay” the proceedings are excluded. He argues that, because the trial was to begin

the same day, and immediately after his suppression hearing, his motion did not actually delay the

proceeding. We respectfully disagree. “[T]he time between the filing of [defendant’s] motion and

the conclusion of the hearing is automatically excluded.” Greenup v. United States, 401 F.3d 758,

766 (6th Cir. 2005) (emphasis added) (citing United States v. Mentz, 840 F.2d 315, 326 (6th Cir.

1988)). “Congress intended subsection (F) to exclude from the Speedy Trial Act’s 70-day limitation

all time between the filing of a motion and the conclusion of the hearing on that motion” regardless

of why a hearing was set for a particular date. United States v. Keefer, 799 F.2d 1115, 1121 (6th Cir.

1986) (quoting Henderson v. United States, 476 U.S. 321, 330 (1986)).

       The time during which McCoy’s motion was pending, from February 11, 2004, to March 23,

2004, is automatically excluded from the speedy trial calculus. That the trial was also scheduled for

March 23 is not relevant. We automatically exclude from the Speedy Trial calculus the days

McCoy’s motion was pending. Under these rules the district court properly denied McCoy’s motion

to dismiss.




       1
           18 U.S.C. § 3161(h)(1)(F) requires:

       [t]he following periods of delay shall be excluded . . . in computing the time within which
       the trial of any such offense must commence: (1) Any period of delay resulting from
       other proceedings concerning the defendant, including but not limited to–
       (F) delay resulting from any pretrial motion, from the filing of the motion through the
       conclusion of the hearing on, or other prompt disposition of, such motion.
No. 04-4463
United States v. McCoy
Page 7

                                                     V.

        McCoy argues that the district court abused its discretion in denying his motion to withdraw

his guilty plea. We review a district court’s denial of a motion to withdraw a guilty plea under an

‘abuse of discretion’ standard. United States v. Lineback, 330 F.3d 441, 443 (6th Cir. 2003).       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.” Lineback, 330 F.3d at 443 (citing

United States v. Spikes, 158 F.3d 913, 927 (6th Cir. 1998)). We recognize that the circumstances

here and judgments required are particularly difficult for any district judge and review with that in

mind.

        Under Rule 11, a defendant must knowingly and voluntarily enter his guilty plea. United

States v. Goldberg, 862 F.2d 101, 106 (6th Cir. 1988). Where a defendant seeks to withdraw a

guilty plea after the court has accepted the plea but before sentencing, a defendant must provide a

“fair and just” reason for the withdrawal. Fed. R. Crim. P. 11(d)(2). In United States v. Bashara,

27 F.3d 1174 (6th Cir. 1994), the Sixth Circuit enumerated several factors a district court may assess

in evaluating whether a defendant has established a “fair and just” reason for withdrawal, namely:

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 failure to move for withdrawal earlier in the proceeding; 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. Bashara, 27 F.3d at 1180-81.
No. 04-4463
United States v. McCoy
Page 8

       In its order denying defendant’s motion to withdraw his guilty plea, the district court

accurately noted that it may consider the length of time between the entry of the plea and the motion

to withdraw. United States v. Valdez, 362 F.3d 903, 912 (6th Cir. 2004). The court noted that in

Valdez, (involving a 75 day delay) and in United States v. Durham, 178 F.3d 796 (6th Cir. 1999),

(involving a 77 day delay), this Court held that the respective district courts did not abuse their

discretion in denying the defendants’ motions to withdraw. The district court correctly stated that

over 130 days elapsed between McCoy’s guilty plea and his motion to withdraw the plea. As it turns

out, however, in his Motion for Leave to Withdraw as Counsel, filed on April 28, 2004, Alvertis M.

Bishop, McCoy’s former counsel, acknowledged to the court that McCoy had “notified the

undersigned in writing that he wishes to withdraw the plea of guilty . . . .” JA 20. Therefore,

McCoy effectively notified the court within 30 days after the plea hearing that he wished to

withdraw his guilty plea.

       Consequently, the district court’s comparison of this case to Valdez and Durham is not

particularly convincing. In those instances, the defendants failed to provide any explanation for the

delays between their guilty pleas and the motions to withdraw. Here, by contrast, McCoy notified

Mr. Bishop that he wished to withdraw his plea, and Mr. Bishop acknowledges that statement in his

motion to withdraw as counsel. Further, Mr. McCoy’s new counsel filed the motion to withdraw

the plea within approximately 45 days of being appointed as counsel. Consequently, we conclude

that under Bashara, the court improperly relied upon and weighed the 133 day delay in considering

whether McCoy provided a “fair and just” reason for withdrawal.

       McCoy also says that his plea was not knowing and voluntary. A review of the record shows
No. 04-4463
United States v. McCoy
Page 9

McCoy expressed dissatisfaction with the advice he received from his counsel while he was entering

his guilty plea. For example, Mr. Bishop stated to the court that McCoy “would like it placed in the

record that he requested that I withdraw as counsel, that that request was denied and that that is part

of his reason in going forward.” JA 54. In addition, in response to a question from the court as to

whether he was satisfied with the advice of counsel, McCoy replied “No, not really.” JA 57. Such

discomfort is not determinative of whether a plea was knowing and voluntary. But it must be

considered in combination with other factors, as the aim of Rule 11(d) is to allow “a hastily entered

plea made with unsure heart and confused mind to be undone . . . .” Bashara, 27 F.3d at 1181

(citations omitted).

       In these circumstances we doubt that McCoy’s guilty plea can be considered knowing and

voluntary in the absence of an explicit waiver of certain constitutional rights. A guilty plea can only

be valid if the defendant enters into it intelligently and voluntarily, which may be determined from

the totality of the circumstances. Abdus-Samad v. Bell, 420 F.3d 614 (6th Cir. 2005) (citing Brady

v. United States, 397 U.S. 742, 747 (1970)). A guilty plea entails the waiver of “(1) the privilege

against compulsory self-incrimination; (2) the right to trial by jury; and (3) the right to confront

one’s accusers.” Id., citing Boykin v. Alabama, 395 U.S. 238, 243 (1969). Rule 11 specifically

requires a judge to ask a defendant whether he waives these rights when taking a guilty plea.2


       2
         Rule 11(b)(2) requires the court to put the defendant under oath, “address the defendant
personally in open court,” and:

       inform the defendant of, and determine that the defendant understands the following:
       (A) the government’s right, in a prosecution for perjury or false statement, to use
       against the defendant any statement that the defendant gives under oath;
       (B) the right to plead not guilty, or having already so pleaded, to persist in that
No. 04-4463
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Page 10



       When a defendant challenges the constitutionality of his plea, the government can generally

show that the plea was entered knowingly and voluntarily by production of a transcript of the lower

court proceedings. McAdoo v. Elo, 365 F.3d 487, 494 (6th Cir. 2004) (citing Garcia v. Johnson, 991

F.2d 324, 326 (6th Cir. 1993)). As the Supreme Court noted in Boykin, “we cannot presume a

waiver of these three important federal rights from a silent record.” Boykin, 395 U.S. at 243. The

transcript of the plea colloquy contains no evidence that McCoy was advised of these rights or that

he waived them expressly. We conclude that the combination of these concerns and omissions

amount to an erroneous weighing of the Bashara factors in determining whether McCoy presented

a “fair and just” reason for withdrawal under Rule 11(d). For these reasons, we REMAND for a new

consideration of McCoy’s motion to withdraw his guilty plea in accordance with this opinion. In

all other respects we affirm the decisions of the district court.




       plea;
       (C) the right to a jury trial;
       (D) the right to be represented by counsel – and if necessary have the court
       appoint counsel – at trial and at every other stage of the proceeding;
       (E) the right at trial to confront and cross-examine adverse witnesses, to be
       protected from compelled self-incrimination, to testify and present evidence, and
       to compel the attendance of witnesses;
       (F) the defendant’s waiver of these trial rights if the court accepts a plea of guilty;
       (G) the nature of each charge to which the defendant is pleading;
       (H) any maximum possible penalty, including imprisonment, fine, and term of
       supervised release; . . . .
