NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0354n.06
No. 09-4267 FILED
May 25, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
RYSHEEN SHARP, NORTHERN DISTRICT OF OHIO
Defendant-Appellant.
/
BEFORE: DAUGHTREY, MOORE, and CLAY, Circuit Judges.
CLAY, Circuit Judge. Defendant Rysheen Sharp pled guilty to one count of making and
forging an obligation of the United States in violation of 18 U.S.C. §§ 471 and 472; one count of
manufacturing counterfeit securities in violation of 18 U.S.C. §§ 471 and 472; and one count of
conspiracy with intent to possess counterfeit obligations of the United States in violation of 18
U.S.C. § 371.
Defendant subsequently made a motion to withdraw his guilty plea. The district court denied
Defendant’s motion to withdraw his guilty plea, and sentenced Defendant to 51 months of
incarceration followed by three years of supervised release. The district court ordered Defendant’s
sentence to be served consecutively with an additional sentence of 24 months of incarceration for
No. 09-4267
violation of his supervised release for a prior federal counterfeiting conviction. The district court
further ordered that Defendant’s payment of restitution for his prior counterfeiting conviction be a
condition of his supervised release in this case.
Defendant appeals the district court’s denial of his motion to withdraw his plea, the
procedural and substantive reasonableness of his sentence, and the district court’s order that
Defendant pay restitution for his prior conviction as a precondition of his supervised release in this
case.
For the reasons stated below, we AFFIRM the district court’s judgment.
STATEMENT OF FACTS
Between April 1, 2008 and October 1, 2008, Defendant Rysheen Sharp, and two co-
defendants not involved in the instant appeal, Tyrone Davis, and Fatima Flowers, were involved in
a conspiracy to manufacture counterfeit United States currency. Defendant’s involvement in the
conspiracy consisted of printing and manufacturing counterfeit currency, possessing counterfeit bills
in his wallet and apartment, and advising his co-defendants regarding the quality of the counterfeit
currency they were manufacturing.
On January 13, 2009, Defendant and his two co-defendants were indicted, and charged with
one count of making and forging an obligation of the United States in violation of 18 U.S.C. §§ 471
and 472; one count of manufacturing counterfeit securities in violation of 18 U.S.C. §§ 471 and 472;
and one count of conspiracy with intent to possess counterfeit obligations of the United States in
violation of 18 U.S.C. § 371.
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No. 09-4267
On April 1, 2009, Flowers pled guilty pursuant to a Rule 11 plea agreement, and agreed to
testify against her co-defendants.
That same day, Defendant was rearraigned in anticipation of entering a guilty plea. However,
at the pretrial hearing, Defendant’s counsel stated to the district court, “I believe [Defendant] is in
a spot where he would like to proceed this afternoon and enter a plea.” (R. 86, Tr. of Pretrial
Hearing 4/1/09 at 2.) However, when asked directly by the district court, Defendant told the district
court that he was “not happy with the plea agreement.” (Id. at 3.) The district court verified that
Defendant was making an informed decision to reject the plea agreement, stating, “[the district court]
ha[s] an obligation to make certain that you’ve reviewed the plea agreement, that you reject it, and
that you have so indicated here today.” (Id. at 5.) Defendant responded, “yes, I reviewed it with my
counsel, Your Honor, and I’m not happy with it. But it seems like it’s the best thing for me to do,
but no, I’m not happy with it at all.” (Id.) Even after the government pressed the district court to
nevertheless accept Defendant’s guilty plea because “defendant’s last statement was that he believes
that taking the plea agreement is the best thing for him,” (id. at 6), the district court refused to accept
a guilty plea from Defendant on April 1, 2009, stating that it was “not taking a plea from a defendant
[who] is not fully accepting of the terms and conditions . . . . Unless [Defendant] willingly wants to
accept and affirmatively indicates that he wants to accept this plea agreement, then we are not going
there.” (Id.)
On April 2, 2009, the following day, co-defendant Davis entered a guilty plea and agreed to
testify against Defendant.
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No. 09-4267
The district court scheduled Defendant’s trial for June 22, 2009. In response, the government
filed a motion requesting that the district court continue the sentencing hearings of Defendant’s co-
defendants who had agreed to testify at Defendant’s trial. The district court granted the
government’s motion to continue Flowers’ and Davis’ sentencing hearings until July 1, 2009.
On June 22, 2009, voir dire commenced in Defendant’s trial. On June 23, 2009, after the jury
was empaneled, but before attorneys’ opening statements, Defendant informed the district court that
he wanted to plead guilty. Defendant stated,
I have five kids . . . . I’m a father. I need to do what’s best, I think, for my family .
. . . I mean, coming here with one [defense] witness, it’s five against me. I can’t do
that. I’ve got to think about my family. I’ve got to do what I believe may be smart
even if it against my morals or against what I believe, or what I think. I’ve got to do
what’s smart.
(R. 72, Tr. of Trial/Change of Plea Hearing 6/23/09 at 9.) The district court replied that it was
hesitant to accept Defendant’s guilty plea, stating,
Sir, I don’t want you to enter a plea to a charge and also at the same time indicate to
the [c]ourt that you’re not guilty of the offense because if you’re not guilty of this
charge, or if you believe that you’re not guilty and you didn’t commit these acts, then
we should go forward and present the matter to the jury, let a jury decide your guilt
or innocence. In terms of your plea, if you wish to enter a plea today, if I’m
convinced that you’ve had sufficient time to discuss that decision with your attorney,
then I’m willing to entertain it. But candidly, you’re going to be asked, and I will ask
you directly before I will accept the plea, did you do the things the government
alleges. This will be an admission of guilt in your case . . . . You’re asking the Court
to take a plea, and in essence admit that you engaged in the criminal conduct the
government alleges. So if you’re not . . . prepared to do that, you wish to assert your
innocence, then you should go forward, present your case to a jury. If you . . . are
convinced at this time you wish to acknowledge you engaged in wrongful conduct,
you committed these acts, then I’ll take the plea.
(Id. at 9-10.) Defendant responded, “I’m going to take the plea, Your Honor.” (Id. at 12.)
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No. 09-4267
Prior to accepting Defendant’s guilty plea, the district court verified that Defendant’s guilty
plea was voluntary by discussing with Defendant the charges against him, the rights Defendant was
waiving by pleading guilty, and the range of possible penalties. First, the district court outlined the
elements of the offenses with which Defendant was charged, and the government outlined the
evidence it was prepared to present at trial to demonstrate Defendant’s guilt. (See id. at 14-15, 27.)
Second, the district court explained that by pleading guilty, Defendant “could be deprived of
valuable civil rights such as the right to vote, the right to hold public office, the right to serve on a
jury.” (Id. at 16.)
Next, the district court reviewed the potential penalties for the offenses. The district court
explained that two of the offenses carried a twenty year statutory maximum sentence, and that one
carried a five year statutory maximum sentence. (See id. at 18.) The district court further explained
that Defendant’s advisory guidelines range was likely to be either 18 to 24 months, 33 to 41 months,
or 41 to 51 months. However, the district court emphasized that prior to the preparation of a
Presentence Investigation Report (“PSR”) it could not know what Defendant’s advisory guidelines
range would be and that, in any event, these guidelines ranges were merely advisory. (See id. at 17-
22.)
Finally, the district court explained that Defendant was waiving several constitutional rights
by entering a guilty plea. The district court explained, “obviously you’re giving up your right to a
trial to a jury here.” (Id. at 23.) The district court elaborated on the trial rights that Defendant was
waiving by entering a guilty plea, stating,
if there were a trial in this matter, you would be presumed innocent. The government
would be required to prove you guilty of these offenses beyond a reasonable doubt
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No. 09-4267
. . . . [And] if there were a trial in this case, witnesses for the government would be
required to come forward here and testify in your presence. Your attorney could
cross-examine those witnesses, ask questions on your behalf. He could object to any
evidence the government offers in the matter, and he could offer evidence on your
behalf if you so chose. You’re not required to present any evidence, but you would
have that right if you wished . . . . [I]f there were a trial in this case, you could call
witnesses to testify [o]n your own behalf . . . . You would have a right to testify, if
you wished . . . . You would also have a right not to testify.
(Id. at 23-25.)
In addition to detailing the above, the district court further verified the voluntariness of
defendant’s plea, inquiring,
You’re sure [that you would like to plead guilty] . . . . Now, if you’re not admitting
that you did these things, if you’re innocent or you believe you are not guilty of these
offenses, then we will go forward with trial . . . . Either way, the jury is empaneled.
They’re here today. But if you wish to maintain your innocence, then we will go
forward and present the matter to a jury. If you are admitting that you are guilty of
these crimes, these offenses, then I’ll accept the plea. But I’m not . . . going to accept
a plea from an individual who . . . believes he is not guilty, or innocent of these
offenses Because then we will go forward. Again, that’s what the jury is here for,
to decide your guilt or innocence.
(Id. at 15-16.)
At all times during the plea colloquy, Defendant maintained that he understood the crime to
which he was pleading, and all of the consequences of his plea. The district court then accepted
Defendant’s guilty plea.
Defendant’s co-defendants were subsequently sentenced on July 1, 2009, as Defendant’s
guilty plea rendered continuing their sentencing hearings unnecessary.
On September 22, 2009, Defendant moved to withdraw his guilty plea. In his motion to
withdraw, Defendant set forth two reasons for requesting withdrawal: (1) Counsel was unaware that
the Defendant would be subject to the two level enhancement to his offense level for obstruction of
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No. 09-4267
justice contained in the second PSR, “[a]s such, counsel could not properly advise Mr. Sharp that
such a possible upward departure existed in this case. Without such knowledge, Mr. Sharp cannot
enter into a knowing and intelligent[] guilty plea without knowing that such an upward departure
existed,” (R. 71, Mot. to Withdraw Guilty Plea at 3.); and (2) Defendant asserted that he was
innocent of the crimes to which he pled guilty.
The district court denied Defendant’s motion to withdraw on October 1, 2009, Defendant’s
scheduled sentencing date. Prior to denying Defendant’s motion to withdraw his guilty plea, the
district court noted that “[D]efendant does not have an absolute right to withdraw his guilty plea and
has the burden of proving that he’s entitled to withdraw it.” (R. 90, Tr. of Proceedings 10/1/09 at
4.) The district court then explicated its denial of Defendant’s motion to withdraw his guilty plea,
stating,
defendant’s motion to withdraw his guilty plea was filed 91 days after the entry of his
guilty plea, nine days before he was sentenced. So the [district] court would note
there’s a substantial period of time [that] has passed from the time of the plea to the
motion to withdraw . . . . [I]n this case, the basis of the defendant’s desire to
withdraw his guilty plea is primarily because the government has sought a two-level
enhancement under the advisory guidelines for obstruction of justice . . . . This court
at the time of the plea hearing advised the defendant as to an advisory guideline
calculation. Of course the court did not include the two-level obstruction
enhancement, but I did fully advise the defendant of the fact that I would not know
specifically what the possible sanction would be until the presentence report was
prepared. More importantly, I also fully advised the defendant of the fact [that] the
[district] court would have to consider various statutory factors with regard to
sentencing, the guidelines being one of them . . . . Counsel [for the defendant], in his
brief to the [district] court, has argued that the defendant has consistently asserted his
innocence. That is not the case . . . . [At] various times he has said he was innocent,
and [on] other occasions, he has indicated [that] he was not innocent. And, under
oath, sworn to tell the truth, having been admonished of the possible consequences
of failing to tell the truth, admitted his guilt in this matter.
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No. 09-4267
(Id. at 6-8.) The district court also noted that “defendant has [an] extensive, extensive history [with]
the criminal justice system, both in the state and the federal systems. He has 16 prior convictions
. . . . He has a prior federal conviction, so he is well aware, fully aware, of the ramifications of a
guilty plea and aware of all the matters regarding the criminal justice system.” (Id. at 8-9.) Finally,
the district court discussed “the potential prejudice to the government if the motion to withdraw is
granted.” (Id. at 9.) The district court stated that while this was,
not an overriding concern, the government has outlined the fact that indeed there will
be some prejudice to the government, the fact that two [co-defendants] have been
previously sentenced. That sentencing was delayed until the trial of this matter was
completed, and also the prejudice to the government’s agents having to reschedule
and appear, and last but not least, although its not prejudice to the government, the
[district] court is also mindful of the fact I believe over 30 jurors were . . .
summoned, and then came to this court, participated in a day-long process to select
this jury. In these economic times, those jurors losing their money and time away
from their employment and family . . . while perhaps not one of the factors listed . .
. certainly is also worth noting as I consider the defendant’s motion.
(Id. at 9-10.)
Therefore, the district court denied Defendant’s motion to withdraw his guilty plea, and
proceeded with Defendant’s sentencing hearing.
Prior to sentencing Defendant, the district court accepted Defendant’s admission that he
committed the instant crimes while on supervised release for a prior federal counterfeiting
conviction. In so doing, the district court explained that in addition to sentencing Defendant for the
instant crimes, “the [district] court also has the discretion to impose a sentence for [Defendant’s]
supervised release violation . . . . The [district] court can impose two years for the supervised release
violation. And under the guidelines, the [district] court could impose a revocation, range of
imprisonment of 21 to 27 months.” (Id. at 12.)
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No. 09-4267
The district court calculated Defendant’s offense level at 15, and his Criminal History
Category at VI. This calculation rendered an advisory guidelines range of 41 to 51 months. In
sentencing Defendant, the district court stated that it was “required to impose a sentence that’s
sufficient, but not greater than necessary, to comply with the purposes of 18, United States Code,
Section 3553(a), and consider and address all of the factors set forth in the statute as it relates to this
matter.” (Id. 24-25.) The district court proceeded to address the relevant § 3553(a) factors.
In its analysis, the district court “[began] with the nature and the circumstances of this
offence . . . [which] was part of a conspiracy that the defendant would manufacture counterfeit
United States currency . . . and sell[] counterfeit currency from his residence.” (Id. at 25-26.) The
district court described the details of Defendant’s counterfeiting operations, and stated that
Defendant was observed by special agents attempting to manufacture counterfeit currency both in
his residence and in Flowers’ residence, and advising his co-defendants “about the quality and color
of counterfeit currency.” (Id. at 27.) Special agents also observed $350 in counterfeit federal reserve
notes in Defendant’s residence and wallet.
Next the district court addressed Defendant’s history and characteristics. The district court
stated that Defendant was,
35 years old. He has one prior juvenile adjudication for carrying a concealed weapon
and 16 prior adult convictions, varying from driving under suspension, conspiracy
to make, utter and possess counterfeit securities of an organization, obviously a
federal offense . . . . The only time this defendant has not been engaged in some form
of illegal unlawful activity is when he’s been incarcerated . . . . he has violated the
law repeatedly without any compulsion throughout his entire adult life . . . . The
defendant has not exhibited any signs of violence in the past or any indication of
suffering from any type of abuse. He obtained a GED and was maintaining
employment at the time of his arrest with New Generations Auto Body in Cleveland,
Ohio. The defendant has substance issues, clearly, beginning at age 16. He admitted
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No. 09-4267
using marijuana and PCP. He has been through drug programs; however, recently
referred to Fresh Start for additional drug counseling . . . . The defendant has four
children he reports seeing on a regular basis.
(Id. at 28-29.)
The district court next addressed “[t]he need for the sentence imposed.” (Id. at 30.) In
connection with this § 3553(a) factor the district court stated, “[a]s I’ve already noted, this defendant
has been involved in the legal system since the age of 17. Since that time, the defendant has incurred
adult convictions, serving custody in time on several of his convictions, with the longest period of
incarceration being 33 months. He was on federal supervised release at the time of the instant
offense.” (Id.) Moreover, the district court noted that,
none of the sanctions have deterred this defendant, and as I’ve already outlined . . .
this defendant is in no way deterred from just continuing to commit to violate the
law. He goes to prison. He comes back out, goes right back to violating the law.
Nothing has been done to deter him in any way. The defendant is a threat to the
public with his financial schemes in our already poor economy, h[i]s continued drug
use, could lead to further criminal activities and even violence.
(Id. at 31.) “Therefore,” concluded the district court, “a sentence at the high end of the guideline
range or even higher, if I wish to vary . . . is necessary to protect the public and deter this defendant,
provide appropriate punishment and to allow him to address his long-time addiction.” (Id.)
The district court proceeded to sentence Defendant to a term of 51 months of imprisonment
on each of his three offenses, to be served concurrently, followed by three years of supervised
release. Furthermore, the district court imposed a term of 24 months of incarceration for
Defendant’s violation of his supervised release on his prior federal conviction to be served
consecutively with his 51 month sentence. The district court stated that “perhaps [the consecutive
sentences] will allow the defendant an opportunity to obtain further training, treatment for his drug
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No. 09-4267
addiction and perhaps provide some deterrent effect and prevent him from once again continuing to
violate the law and again, hopefully, that will be of some benefit to him.” (Id. at 36.) The district
court also noted that Defendant owed $31,126.98 in restitution pursuant to his prior counterfeiting
conviction, and made restitution of that sum a condition of Defendant’s supervised release in the
instant case.
Finally, at the conclusion of Defendant’s sentencing hearing, the district court asked
Defendant if he objected to the sentence. (See id. at 38.) Defendant responded that he did not have
any objections.
Defendant timely appealed both the district court’s denial of his motion to withdraw his
guilty plea, and his sentence.
DISCUSSION
I. Motion to Withdraw Guilty Plea
A. Standard of Review
“This Court reviews a district court’s denial of a motion to withdraw a guilty plea for abuse
of discretion. Abuse of discretion results 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) (internal citations omitted). Moreover, “[t]his 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. (internal citations omitted).
B. Analysis
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No. 09-4267
As a general matter, we have noted that “[t]he withdrawal of a guilty plea is inherently in
derogation of the public interest in finality and the orderly administration of justice.” Id. Therefore,
“[w]hen a defendant has entered a knowing and voluntary plea of guilty at a hearing at which he
acknowledged committing the crime, the occasion for setting aside a guilty plea should seldom
arise.” Id. This Court has stated that “[a] defendant does not have an absolute right to withdraw a
guilty plea and bears the burden of proving that he is entitled to withdraw his guilty plea.” Id.
Federal Rule of Criminal Procedure 11(d)(2)(B) permits a defendant to “withdraw a plea of
guilty . . . after the court accepts the plea, but before it imposes sentence if . . . the defendant can
show a fair and just reason for requesting the withdrawal.” We have reiterated that “[t]his rule is
designed 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 he made a bad choice in pleading guilty.” Ellis, 470 F.3d at 280-
81. See also United States v. Haygood, 549 F.3d 1049, 1052-53 (6th Cir, 2008); United States v.
Lineback, 330 F.3d 441, 443 (6th Cir. 2003). Thus, “[w]ithdrawal of a plea is appropriate where
there is a real confusion or misunderstanding of the terms of the agreement.” Id. at 281.
In determining whether a defendant has met the Rule 11(d)(2)(B) standard, and articulated
a reason for withdrawal of his guilty that is fair and just, this Court looks to a set of seven factors:
(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.
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No. 09-4267
United States v. Dixon, 479 F.3d 431, 436 (6th Cir. 2007) (citing United States v. Bashara, 27 F.3d
1174, 1181 (6th Cir. 1994)). However, “the factors listed are a general, non-exclusive list and no
one factor is controlling.” Ellis, 470 F.3d at 286.
Application of the factors to the instant case demonstrates that the district court did not abuse
its discretion in denying Defendant’s motion to withdraw his guilty plea.
Regarding the first factor, the amount of time that elapsed between the guilty plea and the
motion to withdraw, this Court has stated that “[t]he shorter the delay, the more likely a motion to
withdraw will be granted, and a defendant’s reason for filing such a motion will be more closely
scrutinized when he has delayed his motion for a substantial length of time.” Id. Defendant moved
to withdraw his guilty plea 91 days after pleading. This Court has “frequently relied on much shorter
delays for upholding a withdrawal denial.” Dixon, 479 F.3d at 436. See, e.g., United States v.
Valdez, 362 F.3d 903 (6th Cir. 2004) (upholding a denial of a motion to withdraw due to a 75 day
delay); United States v. Durham, 178 F.3d 796 (6th Cir. 1999) (upholding a denial of a motion to
withdraw due to a 77 day delay); United States v. Baez, 87 F.3d 805 (6th Cir. 1996) (upholding a
denial of a motion to withdraw due to a 67 day delay). Moreover, Defendant failed to proffer any
reason explaining his 91 day delay in moving to withdraw his guilty plea. Defendant’s unexplained
delay weighs against him, and supports upholding the district court’s denial of his motion to
withdraw.
The district court further noted that the jury was already empaneled prior to Defendant’s entry
of the guilty plea. Although Defendant asserts that the district court improperly considered this fact
in denying his motion to withdraw, the district court did not err in considering this fact in its analysis.
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No. 09-4267
This Court has stated that the list of enumerated factors is not exhaustive. See Ellis, 470 F.3d at 281.
Thus, a district court may consider any additional facts relevant to determining whether permitting
a defendant to withdraw his guilty plea is mandated by justice. In this case, the jury was already
empaneled prior to Defendant’s entry of the guilty plea, and the government had prepared for
Defendant’s trial prior to Defendant’s plea. These facts highlight the effect of Defendant’s delay,
and further weigh in favor of denying Defendant’s motion to withdraw.
Regarding the third factor, Defendant did assert his innocence in his motion to withdraw his
guilty plea, stating, “Mr. Sharp has consistently asserted his innocence in this case.” (R. 71, Mot.
to Withdraw Guilty Plea at 3.) However, the circumstances surrounding Defendant’s guilty plea
undercut Defendant’s assertion of innocence in his motion to withdraw. Initially, on April 1, 2009,
the district court refused to entertain Defendant’s guilty plea, stating that it would not “tak[e] a plea
from a defendant that is not fully accepting of the terms and conditions.” (R. 86, Tr. of Pretrial
Hearing 4/1/09 at 6.) In light of Defendant’s initial reticence, the district court was circumspect in
its inquiry regarding Defendant’s innocence. Prior to accepting Defendant’s guilty plea, the district
court asked Defendant several times whether he “did . . . the things the government alleges,” (R. 72,
Tr. of Trial/Change of Plea Hearing 6/23/09 at 10), “underst[ood] . . . that [he was] entering a plea
of guilty to all the counts of the indictment,” (id at 14), and “[was] pleading guilty . . . to these three
offenses because [he was] in fact guilty of these three crimes.” (Id. at 15.) Therefore, although
Defendant asserted his innocence in his motion, in view of the plea colloquy in the district court, this
assertion rings hollow.
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No. 09-4267
Furthermore, both Defendant’s background, and his prior experience with the criminal justice
system weigh in favor of upholding the district court’s denial of Defendant’s motion to withdraw.
Defendant’s periodic experience with the criminal justice system, described by the district court,
suggests that Defendant was not unsure of the ramifications of his guilty plea, but rather that he pled
guilty fully understanding the consequences of doing so. Defendant’s background, and experience
with the criminal justice system thus also weigh in favor of upholding the district court’s denial of
Defendant’s motion to withdraw.
The seventh factor, potential prejudice to the government, also points to the fact that the
district court did not abuse its discretion in denying Defendant’s motion to withdraw. Prior to
Defendant’s guilty plea, the government had arranged for the district court to continue Defendant’s
co-defendants’ sentencing because they were cooperating with the government, and had agreed to
testify against Defendant at trial. Subsequent to Defendant’s guilty plea, but prior to Defendant’s
motion to withdraw, the district court sentenced Defendant’s co-defendants. Granting Defendant’s
motion to withdraw, and requiring the government to try Defendant in the instant case, would
prejudice the government as it would have to arrange for the co-defendants, who may not be as
cooperative post-sentencing, to testify.
Finally, Defendant’s stated reason for moving to withdraw his guilty plea was that at the time
of Defendant’s plea, “there was no suggestion of a two level enhancement for an upward departure
based upon obstruction of justice,” and that “[w]ithout such knowledge, Mr. Sharp [could not] enter
into a knowing and intelligent[] guilty plea.” (R. 71, Mot. to Withdraw Guilty Plea at 2-3.)
Although it is true that the district court did not inform Defendant at the time of his guilty plea that
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No. 09-4267
he was exposed to this particular enhancement, the district court did thoroughly explain to Defendant
the range of sentences to which he was exposed. Prior to accepting Defendant’s guilty plea the
district court explained that two of the offenses to which Defendant was pleading guilty carried a
statutory maximum sentence of 20 years of imprisonment. (See R. 72, Tr. of Trial/Change of Plea
Hearing 6/23/09 at 17.) Moreover, the district court explained that it was uncertain of Defendant’s
advisory guidelines range. (See id. at 20.) The district court also stated that the guidelines range was
advisory, and enumerated the § 3553(a) factors it would consider in determining Defendant’s
sentence. (See id. at 18-19.) Defendant was sentenced to 52 months of imprisonment, within the
range discussed by the district court at Defendant’s June 23, 2009 plea colloquy. Rather,
Defendant’s stated reason for moving to withdraw his guilty plea is exactly the type of tactical
reconsideration prohibited by this Court. See Ellis 470 F.3d at 281.
C. Summary
The district court did not abuse its discretion in denying Defendant’s motion to withdraw his
guilty plea.
II. Procedural and Substantive Reasonableness of Defendant’s Sentence
A. Standard of Review
This Court “review[s] all sentences – whether inside, just outside, or significantly outside the
Guidelines range – under a deferential abuse-of-discretion standard.” United States v. Bolds, 511
F.3d 568, 578 (6th Cir. 2007). This reasonableness review “has two components: procedural and
substantive.” Id. “Consequently, our reasonableness review requires inquiry into both the length
of the sentence and the factors evaluated and the procedures employed by the district court in
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No. 09-4267
reaching its sentencing determination.” United States v. Herrera-Zuniga, 571 F.3d 568, 581 (6th
Cir. 2009).
In reviewing a challenge for procedural reasonableness, this Court applies one of two
standards of review. This Court reviews preserved sentencing challenges “under a deferential abuse-
of-discretion standard for reasonableness.” Id. However, “[w]here a defendant fails to properly
preserve an issue for appeal, that claim is subject to a review for plain error only.” Id. at 580.
B. Analysis
Defendant challenges the procedural and substantive reasonableness of his sentence.
Specifically, Defendant asserts that his sentence is unreasonable for two principal reasons: (1) that
the district court only considered disparities with Defendant’s co-defendants’ sentences in
considering 18 U.S.C. § 3553(a)(6); and (2) that Defendant’s 51 month sentence is substantively
unreasonable.
1. Procedural Reasonableness
Prior to evaluating the procedural reasonableness of Defendant’s sentence, this Court must
“determine what standard of review applies” by “determin[ing] whether [Defendant] preserved these
claims for appeal.” Herrera-Zuniga, 571 F.3d at 578. As this Court held in United States v. Bostic,
371 F.3d 865 (6th Cir. 2004), “district courts are required, after announcing sentence, to ask the
parties whether they have any objections to the sentence that have not previously been raised.”
Herrera-Zuniga, 571 F.3d at 578. If the defendant fails to raise an error “[w]here the sentencing
judge complies with this procedure, the defendant generally forfeits the right to challenge on appeal
any procedural errors to which he did not object at the time of sentencing.” Id. Unpreserved
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No. 09-4267
procedural challenges will be reviewed for plain error only. Id. at 581. In this case, Defendant
admits that he did not preserve the instant procedural challenges, and that this Court should review
his claims for plain error.
To establish plain error, “a defendant must show (1) error[,] (2) that was obvious or clear,
(3) that affected defendant’s substantial rights[, and] (4) that affected the fairness, integrity, or public
reputation of the judicial proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008)
(en banc).
“This Court’s opinion in Vonner shows that plain error review should be extremely
deferential to the sentencing judge.” United States v. Wallace, 597 F.3d 794, 804 (6th Cir. 2010)
However, the Vonner “majority acknowledged that the crucial question is ‘whether the record makes
clear that the sentencing judge . . . was fully aware of the defendant’s circumstances and took them
into account in sentencing him.’” Id. (quoting Vonner, 516 F.3d at 387). Vonner “emphasize[s] that
the record must make clear that the sentencing judge considered the evidence and arguments” in
sentencing Defendant. Id. at 805 (same).
Procedural reasonableness review “begins with a robust review of the factors evaluated and
the procedures employed by the district court in reaching its sentence.” Bolds, 511 F.3d at 578.
Specifically,
[i]n reviewing sentences for procedural reasonableness the Court
must ensure that the district court: (1) properly calculated the
applicable advisory Guideline range; (2) considered the other §
3553(a) factors as well as the parties’ arguments for a sentence
outside the Guidelines range; and (3) adequately articulated its
reasoning for imposing the particular sentence chosen, including any
rejection of the parties’ arguments for an outside-Guidelines sentence
and any decision to deviate from the advisory Guidelines range.
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No. 09-4267
Id. at 581.
In reviewing the district court’s application of the § 3553(a) factors “there is no requirement
. . . that the district court engage in a ritualistic incantation to establish consideration of a legal
issue,” or that it “make specific findings relate to each of the factors considered.” Id. However, in
order for a sentence to be procedurally reasonable “the record must contain the district court’s
rationale for concluding that the sentence imposed is sufficient but not greater than necessary, to
comply with the purposes of sentencing set forth in 18 U.S.C. § 3553(a).” Id. The district court
must provide an “articulation of the reasons [why it] reached the sentence ultimately imposed.”
United States v. Jackson, 408 F.3d 301, 305 (6th Cir. 2005). This Court has further explained that,
“[s]imply listing the § 3553(a) factors and various characteristics of the defendant without referring
to the applicable Guidelines range or explaining the decision to stay within or deviate from that range
is insufficient.” Bolds, 511 F.3d at 580 (quoting United States v. Cousins, 469 F.3d 572, 577 (6th
Cir. 2006)). Instead, to be procedurally reasonable, “[t]he district court must provide a clear
explanation of why it has . . . chosen the particular sentence imposed, regardless of whether it is
within or outside of the Guidelines.” Id.
Section 3553(a)(6) requires sentencing courts to “consider the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found guilty of similar
criminal conduct.” Moreover,
[i]n considering a sentencing judge’s obligation to address sentencing disparities
under § 3553(a)(6), this Court has been clear that, the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found
guilty of similar conduct, does not apply to co-conspirators. This factor concerns
national disparities between defendants with similar criminal histories convicted of
similar conduct.
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No. 09-4267
Wallace, 597 F.3d at 803 (internal quotations and citations omitted).
In this case, Defendant contends that his “sentence [is] procedurally unreasonable because
the [district] court, in evaluating sentencing disparities, utilized the [Defendant’s] co-defendants,
instead of other similarly situated defendants nationally in determining this factor.” (Br. of
Appellant at 21.) It is true that in sentencing Defendant the district court stated that as to
Defendant’s
two [co-defendants], there’s an argument that the sentence the court would impose
would be disparate between the sentence of the [co-defendants], a 16-month sentence
on one defendant and a one-day sentence on the other defendant. However, it must
be noted that the [co-defendants] had Criminal History Category I and III. They
received a reduction for acceptance of responsibility, they received reduction for
substantial assistance. Neither of those defendants in any way have the kind of
record this defendant has, nor do they in any way approach his prolific criminal
conduct.
(R. 90, Tr. of Proceedings 10/1/09 at 32.)
This Court has stated that in sentencing a defendant, “[a] district judge is not required to
consider the disparity between the sentences of co-defendants. A district judge, however, may
exercise his or her discretion and determine a defendant’s sentence in light of a co-defendant’s
sentence.” Wallace, 597 F.3d at 803. However, to be procedurally reasonable, “[t]he district judge
is . . . under a more rigorous duty to make explicit its consideration of the factors when a defendant
makes a particular argument.” United States v. Simmons, 501 F.3d 620, 625 (6th Cir. 2007).
In his sentencing memorandum to the district court, Defendant pointed out that he “was
indicted with two other individuals in a conspiracy to manufacture counterfeit money . . . . According
to the PSR, [co-defendant] Mr. Davis received 16 months [incarceration]. [Co-defendant] Ms.
Flowers received one day in custody.” (R. 70, Def.’s Sentencing Mem. at 4.) Defendant further
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No. 09-4267
argued that “[t]he PSR suggests a sentence of 51-63 months in this case for Mr. Sharp, the disparity
in sentences is obvious.” (Id. at 5.)
It appears that the district court addressed the disparity in Defendant’s sentence as compared
to those of his co-defendants’ because Defendant raised the disparity in his sentencing memorandum
to the district court. Moreover, Defendant did not argue before the district court that his sentence
was disproportionate to those of defendants nationwide. Therefore, the district court was not under
a specific obligation to address this argument in discussing the § 3553(a) factors at Defendant’s
sentencing. See Simmons, 501 F.3d at 625 (stating that when not raised by a defendant, a district
court need not address every § 3553(a) factor in detail).
The district court thus did not plainly err in its discussion of 18 U.S.C. § 3553(a)(6).
2. Substantive Reasonableness
Defendant also challenges the substantive reasonableness of his sentence. This Court’s
review of a sentence for substantive reasonableness “requires inquiry into . . . the length of the
sentence and the factors evaluated . . . by the district court in reaching its sentencing determination.”
Herrera-Zuniga, 571 F.3d at 581.
In contrast to the requirements for procedural reasonableness review, a defendant “is not
required to object to the substantive reasonableness of his sentence to preserve the issue for appeal.”
Id. at 578. Review for substantive reasonableness review focuses on the appropriateness of “the
length of the sentence,” id. at 581, and scrutinizes whether a sentence is adequate, but not “greater
than necessary to accomplish the sentencing goals identified by Congress in 18 U.S.C. § 3553(a).”
Id. at 590. This Court has elaborated that, “[a] sentence may be considered substantively
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No. 09-4267
unreasonable when the district court selects a sentence arbitrarily, bases the sentence on
impermissible factors, or gives an unreasonable amount of weight to any pertinent factor.” United
States v. Presley, 547 F.3d 625, 630-31 (6th Cir. 2008).
The substantive reasonableness inquiry “take[s] into account the totality of the circumstances,
including the extent of any variance from the Guidelines range.” Bolds, 511 F.3d at 581. In this
inquiry the Court “appl[ies] a rebuttable presumption of substantive reasonableness” to “sentences
within the Guidelines.” Id. Moreover, this Court has clarified that, “[r]egardless of whether [this
Court] would have imposed the same sentence, [this Court] must afford due deference to the district
court’s decision to determine the appropriate length of defendant’s sentence, so long as it is justified
in light of the relevant § 3553(a) factors.” Herrera-Zuniga, 571 F.3d at 591.
As discussed above, the district court provided ample reasons for setting Defendant’s
sentence at 51 months. In its discussion of the § 3553(a) factors during Defendant’s sentencing
hearing the district court expressed concern with Defendant’s high rate of recidivism. The district
court stated, “this defendant has been involved in the legal system since the age of 17, since that
time, the defendant has incurred adult convictions, serving custody in time on several of his
convictions . . . . He was on federal supervised release at the time of the instant offense.” (R. 90, Tr.
of Proceedings 10/1/09 at 30.) However, explained the district court,
none of the sanctions have deterred this defendant . . . this defendant is in no way
deterred from just continuing to . . . violate the law. He goes to prison, he comes
back out, goes right back to violating the law. Nothing has been done to deter him
in any way. The defendant is a threat to the public with his financial schemes in our
already poor economy, has continued drug use, could lead to further criminal
activities and even violence.
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No. 09-4267
(Id. at 31.) Based on these facts, the district court concluded that, “ a sentence at the high end of the
guideline range or even higher, if I wish to vary . . . is necessary to protect the public and deter this
defendant, provide appropriate punishment and to allow him to address his long-time addiction.”
(Id.)
Thus, in the district court’s view, Defendant’s 51 month sentence was necessary in light of
the § 3553(a) factors, especially Defendant’s history of recidivism.
C. Summary
The district court did not abuse its discretion in sentencing Defendant to 51 months of
imprisonment.
III. Consecutive Sentences
A. Standard of Review
We review “[t]he district court’s decision whether to impose a concurrent or consecutive
sentence . . . for abuse of discretion.” United States v. Berry, 565 F.3d 332, 342 (6th Cir. 2009).
Moreover, a district court “does not abuse its discretion when it makes clear the rationale under
which it has imposed the consecutive sentence and seeks to ensure an appropriate incremental
penalty for the instant offense.” Id. (quoting United States v. Owens, 159 F.3d 221, 230 (6th Cir.
1998)).
B. Analysis
When a district court is sentencing a defendant with a prior undischarged sentence, “the
district court may impose a consecutive or concurrent sentence.” Id. However, this Court has
admonished that “[a]lthough a district court retains discretion in imposing a consecutive or
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No. 09-4267
concurrent sentence, such discretion is not unfettered and the record on appeal should show that the
district court turned its attention to § 5G1.3(c) and the relevant commentary in its determination of
whether to impose a concurrent or consecutive sentence.” Id. Moreover, “the [district] court must
make generally clear the rationale under which it has imposed the consecutive sentence and seeks
to ensure an appropriate incremental penalty for the instant offense.” United States v. Sawyers, 360
F. App’x 621, 624 (6th Cir. 2010) (quoting Owens 159 F.3d at 230).
In determining whether consecutive or concurrent sentences are appropriate, “[t]he [district]
court must consider the factors listed in 18 U.S.C. § 3553(a) in making the determination.
Furthermore, the [district] court should also consider the relevant Guidelines recommendations and
policy statements.” Berry, 565 F.3d at 342. The application notes to the guidelines also provide
guidance for determining whether to impose consecutive or concurrent sentences. Relevant to this
case is Application Note 3(C), which “provides that when a defendant is on federal or on state parole
or supervised release at the time of the instant offense, ‘the Commission recommends that the
sentence for the instant offense be imposed consecutively to the sentence imposed for the
revocation.’” Id. (quoting Application Note 3(C) to U.S.S.G. § 5G1.3(c)).
Notwithstanding a district court’s requirement to take the § 3553(a) factors and the relevant
guidelines provisions into account in imposing consecutive sentences, in reviewing the district
court’s decision, this Court views the sentencing record in its entirety, and does not require the
district court to engage in a separate explicit consideration of the relevant statutory and guidelines
provisions in imposing consecutive sentences. This Court,
has never held that a district court is required to repeat Section 3553(a) analysis in
its consideration of the consecutive or concurrent nature of a sentence . . . Requiring
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No. 09-4267
the district courts to conduct a separate Section 3553(a) analysis for the concurrent
or consecutive nature of the sentence would be repetitions and unwarranted . . .
district courts have no such distinct obligation.
Id. at 343.
In this case, the district court systematically considered each of the § 3553(a) factors prior
to announcing Defendant’s sentence. Moreover, the district court expressed concern regarding
defendant’s history of recidivism, and the fact that Defendant remained undeterred by his prior
convictions and sentences. (See R. 90, Tr. of Proceedings 10/1/09 at 31.) “Therefore,” concluded
the district court, a sentence at the high end of the guideline range or even higher, if I wish to vary
. . . is necessary to protect the public and deter this defendant, provide appropriate punishment and
to allow him to address his long-time addiction.” Id.
Furthermore, immediately prior to announcing Defendant’s sentence the district court stated:
I will now turn to the . . . supervised release violation and impose a sentence for that
violation . . . . In this case, the application of policy statements found in Chapter 7 in
the guideline manual result in a range of imprisonment of 21 to 27 months. That
range of imprisonment is based upon the most serious violation, and the defendant
having a Criminal History Category VI. Pursuant to the United States Sentencing
Guidelines 7B1.3(f), any terms of imprisonment the court imposes upon the
revocation of probation or supervised release shall be ordered to be served
consecutively to any sentence of imprisonment the offender is serving, whether or not
the sentence of imprisonment being served resulted from the conduct that is the bases
of the revocation, probation or supervised release. In this case, the court will not
revisit, although I will touch upon again, the 3553(a) factors in imposing a sentence.
I’ve already addressed them. Most, if not all of the factors the court addressed in
imposing a sentence in the underlying case apply in this matter. Most importantly,
the need for the sentence imposed, just punishment, adequate deterrence, protect the
public, reflect the seriousness of the offense, including the offender’s conduct and
condition.”
(Id. at 35-36.)
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No. 09-4267
Based on these facts, and the district court’s thorough analysis of the § 3553(a) factors, the
district court sentenced Defendant to a 24 month term of incarceration for the supervised release
violation, and a 51 month term of incarceration for the instant offense to be served consecutively.
In so sentencing Defendant, the district court stated “perhaps [the sentence announced] will allow
the defendant an opportunity to obtain further training, treatment for his drug addiction and perhaps
provide some deterrent effect and prevent him from once again continuing to violate the law.” (Id.
at 36.)
It is true that the district court did not explicitly announce which sentencing factors it was
considering in imposing Defendant’s consecutive terms of imprisonment. However, the district
court did consider the necessary aspects of Defendant’s individual record, and repeatedly expressed
its concern regarding Defendant’s history of recidivism. In so doing, the district court “ma[d]e
generally clear the rationale under which it has imposed the consecutive sentence.” Sawyers, 360
F. App’x at 624.
C. Summary
The district court did not abuse its discretion in imposing Defendant’s 24 and 51 month terms
of imprisonment consecutively.
IV. Restitution as Precondition for Supervised Release
A. Standard of Review
We review a district court’s imposition of supervised released conditions for abuse of
discretion. See United States v. Modena, 302 F.3d 626, 636 (6th Cir. 2002); United States v. Bortels,
962 F.2d 558, 560 (6th Cir. 1992) (per curiam).
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No. 09-4267
B. Analysis
This Court has explained that “[w]e review the imposition of a special condition of
supervised release along two dimensions. One dimension is procedural: [t]he district court, at the
time of sentencing, must state in open court the reasons for its imposition of the particular sentence,
including its rationale for mandating special conditions of supervised release.” United States v.
Carter, 463 F.3d 526, 528-29 (6th Cir. 2006) (internal quotations and citations omitted).
The second dimension is substantive: “where a condition of supervised release is reasonably
related to the dual goals of probation, the rehabilitation of the defendant and the protection of the
public, it must be upheld.” United States v. Thomas, 212 F. App’x 483, 486 (6th Cir. 2007) (quoting
Bortels, 962 F.2d at 560). Therefore, “[a] sentencing court may impose a non-mandatory condition
of supervised release only if it meets three requirements.” Carter, 463 F.3d at 529. We have
detailed these three requirements as follows:
First, the condition must be reasonably related to several sentencing factors. These
factors are the nature and circumstances of the offense and the history and
characteristics of the defendant[,] and the need for the sentence imposed to afford
adequate deterrence to criminal conduct[,] to protect the public from further crimes
of the defendant[,] and to provide the defendant with needed vocational and
educational training, medical care or other correctional treatment in the most
effective manner. Second, the condition must involve no greater deprivation of
liberty than is reasonably necessary for several sentencing purposes. These purposes
are to afford adequate deterrence to criminal conduct[,] to protect the public from
further crimes of the defendant[,] and to provide the defendant with needed
educational or vocational training, medical care or other correctional treatment in the
most effective manner. Third, the condition must be consistent with any pertinent
policy statements issued by the Sentencing Commission.
Id. Finally, “a condition must satisfy all three requirements[, h]owever, a condition need not satisfy
every single factor and purpose within each of the first two requirements.” Id.
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No. 09-4267
In this case, the district court imposed restitution on Defendant at the behest of the
government. After announcing Defendant’s sentence, the district court asked whether there were
“any other issues the court need[ed] to address?” (R. 90, Tr. of Proceedings 10/1/09 at 37.) The
government responded, “Your Honor, since the court is terminating the supervised release on the
2003 case, the government would request that the court order payment of restitution on that case to
be in order as part of his supervised release terms on the new case. He does jointly and severally
owe more than $31,000 in restitution and has not made any payments to that to date.” (Id.) Based
on this request, the district court stated: “[w]e will do so. We will make that as a condition, as well
as in the new case payment of restitution of $31,126.98.” (Id.)
The district court did not explicitly address restitution in relation to the § 3553(a) factors, or
Defendant’s offense, however, the relationship is nonetheless clear based on the district court’s
thorough explication of its reason for imposing Defendant’s 51 and 24 month sentences. The
supervised release condition is reasonably related to the § 3553(a) factors discussed by the district
court throughout the sentencing hearing. In imposing Defendant’s sentence, the district court
expressed concern over Defendant’s history of recidivism, and expressed hope that his sentence in
the instant case would deter Defendant from committing future crimes. (See, e.g., id. at 36.)
Requiring Defendant to pay restitution as a precondition for supervised release was reasonably
related to the district court’s deterrence goals.
Furthermore, imposition of restitution for counterfeiting as a condition of supervised release
for a counterfeiting conviction is reasonably related to the underlying counterfeiting offense. The
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No. 09-4267
amount of restitution imposed as a condition of supervised release for the instant conviction was
calculated based on Defendant’s previous federal counterfeiting conviction. Both the conviction and
the restitution are imposed for transgressing the same federal prohibition.
C. Summary
The district court did not abuse its discretion in imposing restitution as a condition of
Defendant’s supervised release.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.
29