RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0310p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 10-2031
v.
,
>
-
Defendant-Appellant. -
VINCENT WYNN,
-
N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 06-20663-022—Avern Cohn, District Judge.
Decided and Filed: December 15, 2011
Before: MARTIN, SUHRHEINRICH, and COLE, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Eric J. Allen, THE LAW OFFICE OF ERIC J. ALLEN, LTD., Columbus,
Ohio, for Appellant. Chantale Fiebig, ASSISTANT UNITED STATES ATTORNEY,
Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. Vincent Wynn appeals the district
court’s judgment of conviction and sentence and its order denying his motion to
withdraw his guilty plea.
Wynn pleaded guilty to conspiracy to launder monetary instruments in violation
of 18 U.S.C. § 1956. The district court denied Wynn’s motion to withdraw his guilty
plea and sentenced him to sixty-three months in prison. On appeal, Wynn argues that
1
No. 10-2031 United States v. Wynn Page 2
the district court erred by refusing to allow him to withdraw his plea and that his trial
counsel rendered ineffective assistance.
I.
“We review the district court’s denial of [Wynn’s] motion to withdraw his plea
for abuse of discretion.” United States v. Benton, 639 F.3d 723, 726-27 (6th Cir. 2011)
(citation omitted). Under Federal Rule of Criminal Procedure 11(d), a defendant may
withdraw his guilty plea if he can show a fair and just reason for requesting the
withdrawal. Id. at 727. When assessing whether the defendant has shown a fair and just
reason, we consider the totality of the circumstances, including the following seven
factors, id. (quoting United States v. Bashara, 27 F.3d 1174, 1181 (6th Cir. 1994)):
(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.
The district court did not abuse its discretion by refusing to allow Wynn to
withdraw his guilty plea, because he failed to demonstrate a fair and just reason for it to
do so. As to the first factor, Wynn did not attempt to withdraw his plea until eight
months after it was entered, a far longer delay than other plea withdrawals this Court has
declined to allow. See id. at 727 (finding that a ninety-three day delay weighed against
allowing defendant’s plea withdrawal, and noting that “[t]his Court has declined to allow
plea withdrawal when intervening time periods were as brief as one month”); United
States v. Pluta, 144 F.3d 968, 973 (6th Cir. 1998) (sustaining the denial of defendant’s
motion to withdraw his guilty plea in part due to four-month delay). Even assuming, as
Wynn asserts, that Wynn did not learn of the option to withdraw his plea until January
30, 2010, over two more months passed before he made an attempt to withdraw it.
Additionally, Wynn attempted to withdraw his plea only after he did not receive the
consideration that he hoped to obtain from the prosecution in exchange for his
No. 10-2031 United States v. Wynn Page 3
cooperation. See United States v. Alexander, 948 F.2d 1002, 1004 (6th Cir. 1991)
(“[T]he aim of the rule is . . . 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.”) (citation and internal quotation marks omitted). Thus,
we conclude the first, second, and fourth factors weigh heavily against Wynn.
Wynn did not consistently maintain his innocence in his meetings with the
prosecution following his guilty plea, which weighs against him in the analysis of the
third factor. Further, he was familiar with the criminal justice system and plea process
because he previously pleaded guilty to charges of money laundering and distribution
of cocaine, which weighs against him in the analysis of the fifth and sixth factors.
Finally, as to the seventh factor, “the government is not required to establish prejudice
that would result from a plea withdrawal, unless and until the defendant advances and
establishes a fair and just reason for allowing the withdrawal. Here, because all
preceding factors weigh against [Wynn], the government is not required to show that it
would be prejudiced by withdrawal of the plea.” Benton, 639 F.3d at 729 (citation and
internal quotation marks omitted).
II.
Wynn also argues that his trial counsel performed ineffectively in several ways:
(1) counsel failed to seek certain exculpatory evidence; (2) he failed to fully explain the
plea agreement to Wynn; (3) he failed to sufficiently advise Wynn regarding the
calculation of the amount of money noted in the plea agreement by the government; and
(4) he failed to move to dismiss the case on the basis that it was a vindictive prosecution.
“[O]rdinarily we will not review a claim of ineffective assistance of counsel on direct
appeal because the record is usually insufficient to permit an adequate review of such
a claim.” United States v. Gardner, 417 F.3d 541, 545 (6th Cir. 2005) (citation omitted).
An exception exists, however, when “the record is adequately developed to allow the
court to properly assess the merits of the issue.” United States v. Williams, 612 F.3d
500, 508 (6th Cir. 2010) (citation and internal quotation marks omitted).
No. 10-2031 United States v. Wynn Page 4
The government agrees that the record here is sufficiently developed to allow
proper consideration of Wynn’s ineffective assistance claims. The district court held a
hearing in June 2010 on Wynn’s motion to withdraw his guilty plea due to ineffective
assistance of counsel, at which time both parties presented evidence on all of the
ineffective assistance of counsel issues that form the basis of this appeal. We conclude
that there is no need for further factual findings on this matter and we proceed to address
the merits of this claim. See United States v. Fortson, 194 F.3d 730, 736 (6th Cir. 1999)
(finding no need for further factual development of an ineffective assistance of counsel
claim where the government did not argue the record was insufficient to decide the issue
for the first time on appeal).
“Ineffective assistance under Strickland [v. Washington, 466 U.S. 668 (1984),]
is deficient performance by counsel resulting in prejudice, with performance being
measured against an objective standard of reasonableness, under prevailing professional
norms.” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (citations and internal quotation
marks omitted). To show Strickland prejudice in the guilty-plea context, a defendant
“must show that there is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and instead would have insisted on going to trial.” Short v.
United States, 471 F.3d 686, 691-92 (6th Cir. 2006) (quoting Hill v. Lockhart, 474 U.S.
52, 59 (1985)) (internal quotation marks omitted).
“Under Strickland, trial counsel has a duty to investigate his case.” Avery v.
Prelesnik, 548 F.3d 434, 437 (6th Cir. 2008) (quoting Stewart v. Wolfenbarger, 468 F.3d
338, 356 (6th Cir. 2006)) (internal quotation marks omitted). However, Wynn has failed
to show that he was prejudiced by counsel’s failure to obtain allegedly exculpatory
evidence regarding his possession of a particular vehicle and certain corporate
documents, because he has not shown a reasonable probability that the evidence would
have significantly affected his decision to plead guilty, or even that the evidence was
relevant or favorable to him. Because Wynn has failed to demonstrate prejudice, we
need not determine whether counsel’s actions were unreasonable.
No. 10-2031 United States v. Wynn Page 5
With regard to his claims that counsel did not properly advise him concerning the
plea agreement or concerning the calculation of money involved in the laundering
scheme, Wynn has failed to show that counsel’s actions were unreasonable. A defendant
“has a right to be informed about the plea agreement,” Johnson v. Duckworth, 793 F.2d
898, 901 (7th Cir. 1986), and counsel’s “failure to notify his client of a prosecutor’s plea
offer constitutes ineffective assistance of counsel . . . .” Griffin v. United States, 330
F.3d 733, 737 (6th Cir. 2003) (citations omitted). Wynn’s counsel informed his client
of the plea offer and, as Wynn’s attorney testified at the June 2010 hearing, he reviewed
the entire plea agreement with Wynn “word for word.” Wynn also testified that he
understood the terms of the agreement and the consequences of his plea. Wynn has
failed to show that his attorney’s advice regarding the plea agreement was deficient.
Wynn’s counsel also testified that he had evaluated the amount involved in the scheme
to be well over a million dollars. Therefore, his advice to Wynn to accept the million
dollar amount in the plea agreement—rather than risk the possibility of the prosecution
claiming a much larger amount at trial—was objectively reasonable. See Pough v.
United States, 442 F.3d 959, 968 (6th Cir. 2006) (finding that defense counsel did not
perform unreasonably by informing defendant of plea offers from the government,
coordinating a plea agreement, and obtaining a deal on behalf of defendant). We need
not reach the prejudice prong of Strickland on these claims because counsel did not
perform unreasonably.
Finally, Wynn’s claim of ineffective assistance of counsel based on his attorney’s
failure to move to dismiss the case for prosecutorial vindictiveness fails the prejudice
prong of Strickland. “[T]o prove a realistic likelihood of vindictiveness, a defendant
must demonstrate that the prosecutor has some stake in deterring the petitioner’s exercise
of his rights, and that the prosecutor’s conduct was somehow unreasonable.” United
States v. Moon, 513 F.3d 527, 535 (6th Cir. 2008) (citations and internal quotation marks
omitted). Wynn has not shown that the prosecutor’s conduct was unreasonable and,
thus, he has failed to demonstrate that there exists a reasonable probability that the
district court would have granted a motion to dismiss based on prosecutorial
vindictiveness had his attorney made such a motion. Therefore, Wynn has not
No. 10-2031 United States v. Wynn Page 6
established Strickland prejudice and we need not consider the reasonableness of his
counsel’s performance as regards this final issue.
III.
Accordingly, we AFFIRM the district court’s judgment.