United States v. Lee

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KEON LAMONT LEE, Defendant-Appellant.

No. 23-5584

United States Court of Appeals, Sixth Circuit

March 7, 2024

NOT RECOMMENDED FOR PUBLICATION

On Appeal from the United States District Court for the Eastern District of Kentucky

Before: Boggs, McKeague, and Larsen, Circuit Judges.

OPINION

LARSEN, CIRCUIT JUDGE

In the middle of his trial for multiple drug-distribution offenses Keon Lee pleaded guilty to distributing fentanyl that resulted in an overdose death. Asserting that he did not understand that he would be unable to challenge his guilt on appeal, he moved to withdraw his plea. The district court denied the plea-withdrawal motion. Lee now appeals that decision. Seeing no abuse of discretion, we AFFIRM.

I.

Keon Lee sold cocaine to F.E. on multiple occasions. But on one of those occasions, Lee sold him fentanyl instead. F.E. overdosed on the fentanyl and died. A grand jury indicted Lee for various drug offenses, including for distributing a controlled substance, the use of which resulted in F.E.'s death-Count 3 of the indictment. See 21 U.S.C. § 841(a)(1), (b)(1)(C). Lee pleaded not guilty and proceeded to a jury trial.

At trial, the government presented compelling evidence of Lee's guilt. That included testimony regarding two bags of drugs that police found in Lee's bedroom: "One bag contained just straight fentanyl, one bag contained just straight cocaine." Trial Tr. Day 1, R. 71, PageID 342. The government also presented evidence that one of Lee's other customers made Lee aware that he had sold that customer fentanyl instead of cocaine. And the government introduced a videotape from Lee's interview with the police in which he confessed to selling F.E. narcotics, on which F.E. overdosed and died.

A day and a half into the trial, Lee indicated that he wanted to change his plea-he would plead guilty to Count 3 of the indictment and the government would dismiss the remaining counts. The district court excused the jury and proceeded to rearraignment. The district court questioned Lee to ensure that his plea would be knowing and voluntary, that he was competent, and that he was satisfied with his counsel. With respect to his appeal rights, the district court explained that Lee "would be able to take an appeal to challenge the guilty plea, the conviction, or the sentence that would ultimately be imposed by the Court." R. 73, Tr. of Rearraignment, PageID 497. Lee assured the district court that he had no questions about his appellate rights. The district court then explained the elements that the government would be required to prove at trial and asked Lee to describe the factual basis for his plea. Lee's response: "I knowingly and willingly distributed a controlled substance. I knew at the time it was a controlled substance, and that controlled substance subsequently led to the death of [F.E.]" Id. at 502. The district court accepted Lee's plea, finding a sufficient factual basis for the plea and that it was knowing and voluntary.

Two months later, after Lee's presentence investigation report (PSR) was prepared, Lee's trial counsel notified the district court that Lee wanted to withdraw his guilty plea. Believing that she could not file a motion to withdraw Lee's plea consistent with her ethical obligations, she moved to withdraw from the representation. After being appointed new counsel, Lee moved to withdraw his plea, claiming that he did not understand that, by pleading guilty, he had waived his right to appeal his guilt. The district court held a hearing on Lee's motion to withdraw his plea. Concluding that Lee had not demonstrated a fair and just reason to withdraw his plea, the district court denied the motion. The district court sentenced Lee to 480 months' imprisonment.

Lee timely appeals the district court's denial of his motion to withdraw his plea.

II.

We review the district court's denial of Lee's motion to withdraw his plea for an abuse of discretion. United States v. Bazzi, 94 F.3d 1025, 1027 (6th Cir. 1996) (per curiam). "A district court abuses its discretion when it 'relies on clearly erroneous findings of fact, improperly applies the law or uses an erroneous legal standard.'" United States v. Goddard, 638 F.3d 490, 493 (6th Cir. 2011) (quoting United States v. Ellis, 470 F.3d 275, 280 (6th Cir. 2006)).

A defendant who wishes to withdraw a plea before the court accepts it has a right to do so "for any reason or no reason" at all. Fed. R. Crim P. 11(d)(1). But once the district court has accepted a plea, a defendant may withdraw it before sentencing only if he can "show a fair and just reason for requesting the withdrawal." Fed. R. Crim. P. 11(d)(2)(B). There is no "absolute right to withdraw a guilty plea" that the court has accepted. Ellis, 470 F.3d at 280. That is because plea withdrawal is "inherently in derogation of the public interest in finality and the orderly administration of justice." Id. (citation omitted). Thus, when a plea is knowing, voluntary, and taken "at a hearing at which [the defendant] acknowledged committing the crime," plea withdrawal should seldom be allowed. Id. (citation omitted). After all, the rule permitting withdrawal does not exist "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." United States v. Bashara, 27 F.3d 1174, 1181 (6th Cir. 1994) (cleaned up).

In Bashara, we identified several non-dispositive factors for differentiating pleas "entered hastily" from "those entered strategically." United States v. Hudson, 2024 WL 140550, at *3 (6th Cir. Jan. 12, 2024). They 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.

Bashara, 27 F.3d at 1181.

At the outset, we address a contention that Lee claims is relevant to numerous Bashara factors. While he does not expressly challenge the constitutionality of his plea, or the adequacy of the district court's Rule 11 colloquy, he nonetheless asserts that he should have been allowed to withdraw his plea because it was unknowing. Lee maintains that he labored under the impression that, notwithstanding his guilty plea, he would be able to appeal his factual guilt. He argues that he was misinformed about his appellate rights, pointing to one portion of his colloquy in which the district court remarked that Lee could "take an appeal to challenge the guilty plea, the conviction, or the sentence that would ultimately be imposed by the Court." R. 73, Tr. of Rearraignment, PageID 497.

The district court did not "[lead] Lee into an unknowing plea." Appellant Br. at 6. Nothing in the record leading up to Lee's plea-withdrawal motion supports the contention that Lee believed he could admit the factual basis of his guilt under oath only to immediately contradict that testimony on appeal. The district court explained Lee's appellate rights and asked Lee directly if he "ha[d] any questions about [his] appellate rights in the case." R. 73, Tr. of Rearraignment, PageID 497. Lee, who was represented by counsel, categorically replied that he did not. Id.

The district court's brief statement about Lee's ability to challenge "the guilty plea, the conviction, or the sentence" on appeal is neither misleading nor inaccurate: Lee maintained the right, at least, to challenge the knowing and voluntary nature of his plea, dispute the court's jurisdiction, and raise any preserved objections to the sentence the court imposed. See, e.g., United States v. Studabaker, 578 F.3d 423, 429-30 (6th Cir. 2009).

Moreover, Lee testified that entering a guilty plea was his "knowing and voluntary determination." R. 73, Tr. of Rearraignment, PageID 490. The district court carefully detailed the elements that the government would need to prove at trial, the penalties to which Lee would be subject, and the rights that Lee would be waiving. Id. at 494-95, 497-501. In short, "[t]he record reflects the care taken by the [district court] judge to ensure that [Lee] understood the ramifications of his plea and entered into it voluntarily and knowingly." United States v. Tudor, 796 Fed.Appx. 267, 270 (6th Cir. 2019); see id. at 268 (concluding that a plea was knowing and voluntary notwithstanding the defendant's claim "that he was under the impression that he could later 'undo' his guilty plea"). A proper plea colloquy generally cures any misunderstandings a defendant may have regarding the implications of his plea. Ramos v. Rogers, 170 F.3d 560, 565 (6th Cir. 1999). Here, the district court's plea colloquy was proper. The court had no obligation to "anticipate and negate" any uncommunicated and mistaken belief Lee may have subjectively maintained regarding his ability to end his trial by admitting his guilt and then challenge his guilt on appeal. See United States v. Carson, 32 F.4th 615, 623 (6th Cir. 2022); see also Ramos, 170 F.3d at 565. We turn next to what remains of Lee's Bashara arguments.

Lee's delay favored denial of his motion. We have considered delay of "a few days" as favoring plea withdrawal. See United States v. Spencer, 836 F.2d 236, 239 (6th Cir. 1987) (citation omitted). By contrast, we have considered delays of between one and two months as counseling against permitting...